1. Client Site Set Up
Initially, Arkadin will set up a web site that does not include the client's corporate logos, page headers or colors. Arkadin will then set-up a site for use by client which incorporates client's corporate logos, page headers and colors. The site will be available until client and Arkadin have completed their obligations to create the site. Client will supply the links and branding information and materials necessary for Arkadin to create the site. Arkadin expects that the client site will be available by the date set forth on the Service Order Form (SOF), provided client has provided materials in a timely fashion. Arkadin will make minor changes to the site, such as fixing and changing links, at no additional cost. Client agrees that Arkadin may use client's name and logo on the site, in order to satisfy Arkadin's responsibilities related to the previous sentence.
a. Availability date of the Services
The availability date for a new/replaced/modified service is provided within fourteen (14) working days of the receipt by Arkadin of a valid and duly signed SOF.
b. Specific conditions for Named Host & named Host and Full Deployment
A Named Host is any host who may host an unlimited number of meetings ("Meeting(s)") using the Service; provided that a Named Host may only host the maximum number of simultaneous Meetings and the maximum number of meeting participants including the Named Host at any given time as set out in the SOF. Named Host accounts are individualized and may not be shared or used by anyone other than the one Employee to whom the Named User account is assigned. The identification of Named Hosts must be unique to an individual and may not be of a generic nature. The name of those Employees assigned to Named Host accounts are mentioned on a "Manage Hosts" list (the "List"). The List will be maintained by the resale customer's site administrator, who will update the List so that it is current at all times.
Client may change the committed number of Named Hosts accounts only upon submission and acceptance of an additional resale SOF. As to purchases made on a full deployment basis, the standard Named Hosts model applies, and also the following additional requirements:
Client represents and warrants that the number of Named Hosts purchased is equal to or larger than the number of its employees ("Employees") on the date this SOF is signed.
Client will provide to Arkadin a written report which it will submit with this order and on each anniversary of the effective date of this SOF certified by an officer of the client stating the total number of Employees of the client. The client must be an ultimate parent corporation and this order will apply to all subsidiaries and affiliates controlled, directly or indirectly by the client and the Employees of each of them. If the change in the number of Employees exceeds three percent (3%) from the prior year, the monthly fee will be reset based on the total number of Employees employed for the then current year, and subject to the per-Employee fee set forth in this order. If there is an extraordinary event during the Term, such as a merger, acquisition divestiture or significant layoff that changes the number of Employees by more than twenty percent (20%), client shall report such change to Arkadin within thirty (30) days of such event and the monthly fee will be reset based on the number of Employees in existence after such event.
3. Changes to Services
Arkadin may, at its sole discretion, modify, enhance and/or expand the features of a Service from time to time at no additional cost to client. Arkadin may also, from time to time, make available additional features and/or functionalities to a Service which may, but are not required to, be added to a Service by client at an additional cost. If client elects to add a cost feature, it may do so by contacting its local Arkadin sales representative in order to receive a quote for the cost feature.
4. Fee Adjustments
Arkadin may increase the charges of any Webex Services by giving to the client not less than thirty (30) days notice in writing of such increase, provided that Services ordered prior to the expiration of this notice will be invoiced without regard to the price increase.
Arkadin reserves the right to suspend the Webex Services, if client's payment of fees related to such services is ten (10) or more days overdue.
In case of a material breach of its obligations under this Contract by the client in relation to a Webex Service, Arkadin may terminate any SOF(s) and/or this Contract by written notice if such breach is not cured within fifteen (15) days after written notice thereof from the Arkadin.
7. Use of Client's Name
Client agrees that Arkadin may use its name and logo on the Subscriber Site, in order to satisfy Webex's responsibilities under this Contract.
Client agrees that Arkadin as well as the Company whose services Arkadin is allowed to resell (i.e. CiscoWebex) may use client's name and logo to identify it as a customer of Arkadin or/and of CiscoWebex on client's website, and as a part of a general list of Arkadin/CiscoWebex customers for use and reference in Arkadin/CiscoWebex corporate, promotional and marketing materials. Subject to client prior approval, which will not be unreasonably withheld, Client agrees that Arkadin/CisoWebex may issue a press release identifying client as a customer and describing client's intended utilization, and the benefits that client expects to receive, from use of the Services.
8. Client Responsibilities
9. Limitation of Liability
Client understands and agrees that the services, and any Webex software, are provided "as is" and "as available". Arkadin, its affiliates and suppliers expressly disclaim all liability for any indirect, special or incidental damages or lost profits, howsoever arising, and even if such party has been iinformed of the possibility thereof, as well as warranties of any kind, express or implied, including without limitation any warranty of merchantability or fitness for a particular purpose. Arkadin, its affiliates and its suppliers make no warranty or representation regarding the services, any information, materials, goods or services obtained through the services, the general site or client site, or that the services will meet any client requirements, or be uninterrupted, timely, secure or error free. Arkadin, its affiliates and its suppliers disclaim and exclude any representation or warranties that the services are compatible with any combination of services or software not furnished by Arkadin, its affiliates or its suppliers, which use of the services and website are at client's sole risk. Excepting death, personal injury, fraud, fraudulent misrepresentation and any other matter which cannot be excluded or limited under applicable law, Arkadin, its affiliates and its suppliers' aggregated liability is limited, insofar as permitted under applicable law, to the total accumulated fees paid in relation to the applicable SOF (or its equivalent) during the twelve (12) months immediately preceding the event giving rise to the claim.
For a period up to one year after termination or expiry of the contract, and subject to reasonable prior written notice, Client permits Arkadin to carry out an audit, to ascertain if there is any unpaid and/or fraudulent use of the Services If the review finds any unpaid and/or fraudulent use of the Services, the client must immediately pay on demand for the expenses incurred in conducting the review and 115% of the per unit price for each service that was not paid.
a. Use of the Services Subject to Clause 8, Client may not resell, distribute, make any commercial use of, use on a timeshare or service bureau basis, or otherwise generate income from the Services, failing which Arkadin may with no liability to Client or its sub-distributor, terminate the Service to any affected resale Client as well as contact such resale Client and offer the sale of Service from Arkadin directly or from another Arkadin reseller. Client will respect any applicable territorial limitations and will not modify the look or appearance, or otherwise make derivative works of, the Services or the client Site or reverse engineer or decompile the equivalent of the Webex APIs or the Services.
Client will respect CISCOWEBEX branding guidelines set out at http://www.cisco.com/web/about/ac50/ac47/about_cisco_brand_center.html
and may not purchase from any internet search engine provider the keywords "Cisco WebEx", "WebEX", "WebEx Communications", "Meeting Center", "Training Center", "Sales Center", "Event Center", "Support Center", "WebEx Connect", "Cisco WebEx Connect" or any phrase or combination containing these keywords.
b. Legal compliance
Client agrees that it will comply with all applicable laws and regulations in connection with client use or the Services and of its Site, including but not limited to ; (a) with respect to personally identifiable information sent or received by client, all applicable privacy laws and regulations, including
http://webex.com/companyinfo/webex_privacy.html. (b) laws relating to the recording of communications, including, when required, advising all participant in a recorded Webex meeting or event that the meeting or event is being recorded, and (c) export control laws.
Client represents that it is not an individual less than 13 years of age (or if residing in the European Union, less than 18 years of age). Client acknowledges that the Services are subject to U.S. export control laws and regulations. Client represents that it is not a citizen of an embargoed country or prohibited end user under applicable U.S. export and anti-terrorism laws, regulations and lists.
c. Compliance with anti corruption laws:
Client agrees to comply with the global anti-corruption policy set out at: http://www.cisco.com/legal/anti_corruption.html. Arkadin may suspend performance or terminate this Agreement immediately upon written notice if Client breaches any of the representations and warranties set forth in this section. Client will indemnify and hold harmless Arkadin and its suppliers for any violation by Client of any Applicable Laws.
d. Status of independent contractors
Nothing in this Agreement shall create, or be deemed to create, a partnership or joint venture or relationship of employer and employee or principal and agent or franchisor and franchisee between the parties.
12. US Government provision
This clause applies to all use of the Services by or for the United States government, or any other government or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the United States government. Use of the Services by Users involves incidental access to or use of commercial computer software developed exclusively at private expense, and which in all respects comprise proprietary data belonging to Arkadin or its suppliers. By acquiring Arkadin Services, the government hereby agrees that this software qualifies as "commercial" computer software within the meaning of the acquisition regulation(s) applicable to this procurement. The acquisition or use of Arkadin Services does not include the acquisition or transfer of any rights in the software(s) supplied under this Contract. The terms and conditions of this clause shall govern the government's use of the Services, and shall supersede and take precedence over any conflicting contractual terms or conditions. If this provision fails to meet the goverment's needs or is inconsistent in any respect with Federal law, the government agrees to decline access to, or use of, Arkadin software.