1.1 Attendee means an individual person who Customer intends to view and interact with an Event via the Services.
1.2 Content means the particular substance and all associated material that Customer wishes to make available during an Event including but not limited to audio, data and video information.
1.3 Customer means the party that executes this Agreement and its employees, authorized users, directors, consultants or other persons acting on its behalf in its dealings with Arkadin.
1.4 Minimum Commitment Fee means the amount that Customer commits to spend during the Initial Term or any Renewal Term.
1.5 Online Seminar Event ("Event") means a virtual meeting, conducted using the Services, that Customer wishes to make available to any Attendee who will be able to view and interact with the Event.
1.6 Online Seminar Event Service Order Form ("SOF") means the document completed for each Event by Customer and/or Arkadin that specifies Customer’s specific requirements for the Event or series of Events.
1.7 Online Seminar Event Service Agreement ("Agreement") means this agreement including all schedules, attachments, any future SOF for specific Events and any other terms and conditions that govern the relationship between Customer and Arkadin.
1.8 Services means various audio & web conferencing, webcasting, messaging and other systems and networks including the public switched telephone network and the public Internet as well as various services and tools that Arkadin offers for Customer use.
2.1 Arkadin will provide high quality, reliable Events to Customer pursuant to the Agreement, conditioned on Customer’s compliance with its obligations under hereunder including timely payment of any fees, usage charges or other amounts as specified in the SOF.
2.2 Arkadin shall provide Services to Customer in accordance with Customer's instructions as set forth in this Agreement including any SOF completed for each Event. Arkadin shall not be obligated or responsible to provide or comply with any special instructions, additional specifications or requirements which are not set forth in Agreement or relevant SOF.
2.3 Arkadin may be required to reduce or suspend Services for short periods to enable technical operations to be improved, upgraded or conducted. Arkadin will use best efforts to minimize Customer inconvenience caused by such reduction in or suspension of Services. Arkadin never plans any customer facing Service disruptions during North America business hours or during times when Events are scheduled or likely to be scheduled.
2.4 Customer recognizes that Arkadin’s ability to provide the Services depends on the reliability, availability and continuity of connection by a number of third party telecommunications carriers, vendors, the public Internet and Customer’s own equipment and Arkadin is not responsible for a service interruption outside of its control.
2.5 Customer agrees to restrict knowledge of all telephone access numbers, PIN codes, logins and passwords used to access the Services to appropriate persons and generally to safeguard such information to ensure that there is no unauthorized use of the Services.
3 EVENT PRODUCTION [This clause only applies to full services events.]
3.1 Customer is fully responsible for providing all aspects of the Content of each Event and for making sure that aspects of the Content are available to Arkadin as Arkadin may require from time to time in producing the Event.
Customer expressly acknowledges that delivery of the Event can only occur if it has communicated to Arkadin (1) all information and Contents as necessary to such delivery, (2) in writing, and (3) in a timely manner. Transmission timeframes are set out in the SOF relevant to the Event.
3.2 If the Customer has not (1) provided Arkadin with all necessary information and Content (2) in writing and (3) in a timely manner, Arkadin will not be responsible for any damageable consequences to the Customer, such as the fact that the Event couldn’t occur, or hasn’t occurred as timely forecast or as not been performed in a satisfactory manner.
3.3 Customer is fully responsible for updating all information (as an example in case of modification of the invoicing country or of Attendees, etc.).
4 TERM AND TERMINATION
4.1 This Agreement shall become effective as of the date indicated on the SOF (the "Effective Date") and shall continue for a term of one year, unless a other term is specified ("Initial Term"). On the anniversary of the Effective Date, this Agreement will automatically renew for successive one year periods ("Renewal Term"), unless either party delivers written notice of intention not to renew at least 30 days prior to expiration of the Initial Term or any Renewal Term.
4.2 If either party shall be in material default of its obligations under this Agreement, the party not in default shall have the right to terminate this Agreement if the defaulting party does not cure such default within 30 days of receiving written notice of such default.
4.3 Each Party may immediately terminate the Agreement if (i) a receiver or administrator is appointed over the other party or its assets or if the other party is subject to court-ordered bankruptcy, liquidation or any 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 activity.
5.1 Customer acknowledges that the Minimum Commitment will be fully charged to Customer during the Initial Term and each Renewal Term of the Agreement and that Customer will be liable for any balance of the Minimum Commitment Fee not utilized or paid by the end of the Initial Term or any Renewal Term. The service fees for ON24 Webcast Elite shall be due and payable within thirty (30) days upon the execution of this Agreement.
5.2 Unless otherwise provided in the SOF, once a order has been received from Customer, Customer will be responsible for fifty percent (50%) of the total cost should the Event be cancelled. Customer will be responsible for the total cost should the Event be Cancelled within 24 hours. Notwithstanding anything to the contrary, SOF for ON24 Webcast Elite may not be cancelled during the term of this Agreement other than in accordance with Clause 4.2 above.
5.3 Any modification request by Customer of any current SOF (1) shall be subject to a change fee as set out in the SOF, (2) provided Arkadin shall do its best efforts to fulfill such request.
5.4 All charges are exclusive of any applicable taxes, VAT and regulatory fees now or hereafter attributable to the Services. In the event that any regulatory agency, legislative body or court creates regulations or laws or that a provider modifies tariffs that result in an increase in the costs incurred by Arkadin in providing the Services, Arkadin may increase the charges to Customer by giving to the Customer not less than 30 days’ notice in writing of such increase, provided that the Customer may terminate the part of the Agreement affected by the increase as of the date of the implementation of the new charges, without any penalty
5.5 The Services are invoiced monthly and in US$.
5.6 Net payment is due thirty (30) days from date of invoice.
5.7 Overdue balances shall be subject to a service charge of a percentage set out in the SOF per month on the amount due on each unpaid invoice and accruing on a daily basis until payment is made. The Customer shall pay any actual and reasonable recovery costs or outlays incurred by Arkadin to collect any sums properly due by the Customer under this Agreement. If the Customer fails to pay the charges due in a timely manner, Arkadin may suspend access to Services without prior notification to the Customer.
5.8 Any invoice not disputed within 30 days after which it was issued shall be considered to have been accepted by the Customer.
6 LEGAL COMPLIANCE - INDEMNIFICATION
6.1 Customer is solely responsible to use the Services and provide content in accordance with all applicable local, state and federal laws and regulations.
6.2 Customer shall indemnify, defend and hold ARKADIN and its suppliers harmless from and against any claims, damages, liabilities, costs and expenses (including without limitation reasonable legal fees and expenses including taxes and VAT) arising out of or related to: (i) the use of the Services, including content of any conference communications held by the Customer (such as confidential communication and disclosures made through the use of the Services) and transmission content (such as application sharing, document sharing, file transfer), (ii) the Customer’s breach of any provision of this Agreement (including the SLT), (iii) Customer’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
7 DISCLAIMERS AND LIMITATION OF LIABILITY
7.1 This clause sets out the entire legal and financial liability of Arkadin to the Customer in respect of any claims relating to (i) any breach of this Agreement (ii) any use made by the Customer of the Services or (iii) any representation, statement or tortuous act or omission (including negligence) of Arkadin arising under or in connection with this Agreement. Arkadin disclaims any warranty of merchantability or fitness for use and all other warranties, conditions and other terms implied by statute or common law, to the fullest extent permitted by law, are excluded.
7.2 IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER WHETHER IN TORT, CONTRACT, INNOCENT MISREPRESENTATION OR IN ANY OTHER LEGAL THEORY, FOR (I) ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSS, COSTS, DAMAGES, CHARGES OR EXPENSES; OR (II) LOSS OF PROFITS, OR (III) LOSS OF BUSINESS, CONTRACTS , BUSINESS OPPORTUNITIES; OR (IV) LOSS OF INCOME, ANTICIPATED SAVINGS; OR (V) LOSS OR CORRUPTION OF DATA OR INFORMATION; OR (VI) ANY DEGRADATION WHICH OCCURS IN RELATION TO THE NETWORK OR ASSOCIATED SOFTWARE OR HARDWARE OF THE CUSTOMER AS A RESULT OF THE PERFORMANCE OF THE SERVICES.
7.3 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 THE SERVICES OR THIS AGREEMENT (INCLUDING THE SLT) SHALL NOT EXCEED THE TOTAL AMOUNT OF 100% OF THE FEES PAID BY CUSTOMER OR ITS ASSOCIATED ENTITY TO ARKADIN OR ITS ASSOCIATED ENTITIES, UNDER THE APPLICABLE SOF RELEVANT TO THE INCIDENT.
7.4 TO THE EXTENT THAT IT CANNOT BE EXCLUDED OR LIMITED AS A MATTER OF LAW, NOTHING IN THIS AGREEMENT EXCLUDES THE LIABILITY OF ONE PARTY (I) FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE; OR (II) FOR FRAUD OR FRAUDULENT MISREPRESENTATION
8 SOFTWARE LICENCE TERMS (SLT)
8.1 Notwithstanding any other provision of the Agreement, when the Customer downloads any software application, including any conferencing Add-on software together with any documentation to use the Services ("Software"), the Customer is entitled to use the Software insofar as this is necessary for the proper utilization of ARKADIN’s conferencing Services and only as expressly permitted in this Agreement but only for the period of the term of the Agreement.
The Software is licensed, not sold. ARKADIN hereby grants the Customer a non-exclusive, non-transferable and non-sub licensable license to use the Software.
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 and ARKADIN reserves all of them.
The Customer shall supervise and control the use of the Software so that any Customer only does so in accordance with these SLT.
The Customer must comply with any technical limitations in the Software that only allow using the Software in certain ways and may not: (i) copy the program or the source code of the Software, (ii) utilize the Software for any purpose other than participation in or use of the conferencing Services, (iii) create copies of the Software for any purpose that is not directly related to the conferencing Services or make more copies of the Software than specified in these SLT or allowed by applicable law despite this limitation, (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 these SLT to any third party, (vi) use the documentation but 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.
8.2 THE CUSTOMER UNDERSTANDS AND AGREES THAT THE SOFTWARE IS PROVIDED "AS IS" AND WHERE PERMITTED BY LAW ARKADIN AND ITS SUPPLIERS, EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A SPECIFIC PURPOSE. ARKADIN AND ITS SUPPLIERS MAKE NO WARRANTY OR REPRESENTATION REGARDING (I) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SOFTWARE REGARDING THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH USE OF THE SOFTWARE, OR THAT THE SOFTWARE WILL MEET ANY OF THE CUSTOMER’S REQUIREMENTS AND (II) THE QUALITY OF ANY MATERIAL AND/OR DATA DOWNLOADED THROUGH, OR MATERIAL AND/OR DATA RECORDED, PLAYED BACK OR EDITED (AS APPLICABLE) WITH, THE USE OF THE SOFTWARE.
Use of the Software and of any material obtained and/or data downloaded through or material and/or data recorded, played back or edited (as applicable) with the Software is at the Customer’s sole discretion and risk.
Confidentiality For a period of 5 years after disclosure, each party and their employees, agents, consultants, subcontractors or any other persons for whom they are responsible undertake to keep strictly confidential any information that they may have mutually exchanged during the performance of the Agreement including passwords or access keys to the Services. Confidential information includes, but is not limited to trade secrets, customer lists, Customer Proprietary Network Information as defined under US laws ("CPNI"), software plans or any other product or projects in development, marketing or business plans, or financial information, pricing, and all documents/access information for the Services, and (ii) shall not 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 Agreement. Regarding US Customers, ARKADIN agrees to implement appropriate and specific safeguards to ensure confidentiality of CPNI and compliance with 47 USC 222 & Sections 64.2001-64.2011 of the Commission’s rules. At termination of the Agreement, each party will return all confidential information to the other promptly upon request of the other party.
10.1 The failure of either party at any time to enforce any particular term or condition of this Agreement shall not constitute a waiver of either party's right to enforce at another time such term or condition or any other term or condition of this Agreement.
10.2 Each party may assign or transfer any of its rights or obligations under this Agreement, in whole or in part, without the consent of the other party provided it shall inform the other party in writing prior to the assignment or the transfer. Notwithstanding, neither party may assign or transfer any of its rights or obligations under this Agreement to any third party which is a direct or indirect competitor of the non-assigning party without the prior written consent of the non-assigning party.
This clause shall not be construed as limiting ARKADIN right to use subcontractors to carry out any of its obligations under this Agreement, provided that ARKADIN shall remain liable for any such Services provided by a subcontractor.
10.3 This Agreement 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.
10.4 Customer enters into this Agreement solely for its own benefit and purpose. This Agreement in no way confers any rights upon any third party, including but not limited to any third party participant in any conference or other third party recipient of messages transmitted through the Services.
10.5 Customer warrants and represents that the person executing this Agreement on behalf of Customer is fully authorized to do so.