THESE SPECIFIC TERMS OF USE (STU) ARE APPENDED TO THE CONTRACT AND ARE INTENDED TO DETERMINE THE TERMS AND CONDITIONS APPLICABLE TO THE USE OF SPOKA TALK AND/OR SPOKA CONNECT (HEREAFTER REFERRED TO AS THE « SERVICES »).

THE PARTIES AGREE THESE SPECIFIC TERMS OF USE PREVAIL ON ANY CONTRARY PROVISIONS CONTAINED IN ANY OTHER CONTRACTUAL DOCUMENT, INCLUDING THE ONLINE STANDARD TERMS AND CONDITIONS (STC).

 

  1. DEFINITIONS

The capitalized terms used but not otherwise defined herein shall have the meaning assigned to such terms in the STC or in Spoka Talk and Spoka Connect Service description.

“ANI” means “Automatic Number Identification” of the caller extension.

“CLI” means Caller Line Identification. The CLI is the presented or restricted phone number of the calling party.

“Call termination” means delivery of an out-going call to the called party.

“DID” means Direct Inward Dialing. It represents a phone number resource permitting User to receive incoming calls and make outgoing calls.

“Documentation” means user documentation, in all forms, relating to the Software (e.g. user manuals, on-line help files).

“Emergency Call Services” consist of the access to the Emergency Services Centers in the Available Countries through emergency telephone numbers by routing outgoing calls originated from User DID in accordance with applicable laws and regulations.

“Emergency Services Centers” means local and government backed entities that deal with urgent problems such as illness, fire or crime.

“Public Safety Answering Point” (PSAP) is a call center responsible for answering calls from a local emergency telephone number for police, firefighting, and ambulance services.

“User” means any authorized individual having a Spoka Talk and/or Spoka connect account hosted on Arkadin’s or its Partners platforms.

“VOIP telephone 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).

 

  1. VOIP TELEPHONE SERVICES

2.1 VOIP telephone services Availability

VOIP telephone services are included in Spoka Talk and/or Spoka Connect Services. VOIP telephone services, as described in the service description and in this STU, may be provided by Arkadin only in the following countries (the “Available Countries”): Australia, Belgium, Canada, Finland, France, Germany, Ireland, Italy, Poland, Singapore, Sweden, Switzerland, the Netherlands, UK and USA.

Regardless of the location(s) where the Client decides to use VOIP telephone services, Client will be responsible to comply with all applicable laws and regulations and, shall obtain all applicable permits in connection with such use.

Clients hereby releases Arkadin and its underlying providers from any and all liability, losses or damages which may arise from Arkadin and its underlying providers’ disabling or disconnection of any of User’s Services due to the failure of Client to comply with its obligations under the Contract.

 

2.2 Emergency Call Services

2.2.1 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 Emergency calls where the information are not provided in accordance with this clause.

The Client acknowledges that in case of modification of the Address Declared, Arkadin will modify them as soon as possible and within 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 THE FIRST USE OF THE SERVICES.

 

2.2.2 – General rules

Arkadin provides Emergency Call Services, in accordance with the conditions set forth in the Contract and Services description.

Client recognizes and acknowledges that the Emergency Calls Services are limited to Users:

- with a geographical address located in one of the Available Countries;

- with a DID corresponding to the national and local dialing plan of the country where the User is declared; and

- who are, when dialing to reach an Emergency Service Center, physically located at the Address Declared.

Should User(s) 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 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 telephone 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 telephone services. These events may require that the Client or its Users reset or reconfigure equipment in order to re-establish the VoIP telephone 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 and its underlying suppliers and Arkadin’s network operators shall not be liable for any damages resulting as a direct consequence of the situations mentioned herein

NOMADIC USAGE: The Client understands and acknowledges that the use of the VOIP telephone services from a location other than the Address Declared (“Nomadic Usage”) is possible but does not permit to supply Emergency Calls Services. As a consequence, the Client will:

- 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 telephone services;

- Clearly inform the User at the time of subscription that he/she 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.

 

2.2.3 USA & Canada specific rules

2.2.3.1 Different routing solutions

The Client acknowledges that the national emergency communication center may be used in the event of incomplete or inaccurate location information.

As a consequence, the Client 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. As a consequence, the Emergency Call Services may not be correctly supplied for the time in which 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, therefore Arkadin and its underlying suppliers may use a national PSAP center 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 a national PSAP center:

- 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 Client doesn’t provide Arkadin and keep current its User location information.

- If the User cannot speak and Arkadin does not have the correct information during the setup process, then the dispatch center will not be able to determine the User’s location.

 

2.2.3.2 Differences with traditional 911 emergency services

VoIP telephone 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 acknowledges its understanding of and agrees to the differences that exist between traditional telephone service and VoIP telephone services. Client understands and acknowledges 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 telephone 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 telephone service and VoIP telephone 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 telephone. 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.

2.2.3.3 Placing 911 calls: When a 911 emergency call is made, VOIP telephone 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.

How your information is provided: The VOIP telephone 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.

2.2.3.4 Disconnections: 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.

2.2.3.5 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.

2.2.3.6 Liability

2.2.3.6.1 CANADA - Arkadin and its network operators do not have any control over whether, or the manner in which, calls using VoIP 911 dialing are answered or addressed by any Emergency Call Center. Arkadin disclaims all responsibility for the ability of the equipment to connect to an Emergency Call Center, the conduct of the Emergency Call Center and the public safety answering point. Arkadin relies on third parties to assist in routing 911 calls to Emergency Call Centers and public safety answering point. Arkadin disclaims any and all liability or responsibility in the event that data used by such third party to route the call is incorrect or yields an erroneous result. Arkadin does not have any control over the Internet connection. Neither Arkadin, its officers nor its employees may be held liable for any claim, damage or loss and Clients hereby waives any and all such claims or causes of action, arising from or relating to VoIP 911 dialing service.

Client shall defend, indemnify and hold harmless, Arkadin, its network operators, officers, directors, employees, affiliates, agents, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, counsel fees), including claims based in negligence, gross negligence, willful misconduct, or recklessness, by or on behalf of Client, any User or any other third party relating to the absence, failure, or outage of the equipment, including VoIP 911 dialing, incorrectly routed VoIP 911 calls, incorrectly entered User address information, and/or the inability of any User to be able to use VoIP 911 dialing, or access emergency service personnel.

2.2.3.6.2 USA - 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.

2.2.4. Cellular applications

Calls to emergency number placed through the Spoka mobile application on a smartphone are automatically routed to the native dialer on the smartphone, and the call will be handled by Users’ wireless service provider if wireless service is available. If Users’ wireless service is unavailable, the emergency call cannot be placed. Spoka mobile application cannot place emergency calls over Wi-Fi access. Emergency dialing is not available through Spoka mobile application on tablets or other mobile devices without a native phone dialer and a wireless service plan. Text-to-emergency numbers are not supported on Spoka Services.

2.2.5. 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 only , 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.

 

2.3. Compliance with telecommunication applicable laws

Client acknowledges and agrees that the following Client Data may be processed by Arkadin and transferred to government agency, law enforcement agency, court or otherwise required by law upon appropriate request: (i) Users name and Declared Address, Users telephone numbers (ii) data necessary to trace and identify the source of a communication (e.g. the calling telephone number, the name and address of the subscriber) (iii) data necessary to identify the destination of a communication including the number dialed and any number to which the call is sourced; (iv) data necessary to identify the data and time of the start and end of a communication; (v) data necessary to identify Users’ communications equipment.

Registering User(s) location: Client must register the address of the physical location of each User immediately upon Online Sign up. If User changes its physical address, Client must immediately update the Declared Address of this User through the Portal or in Client’s account settings or by sending an email via support form at https://www.spoka.com/en-gb/contact-us/

 

2.4. Number availability and number porting

2.4.1. Number availability

Client may select telephone number for assignment during the Online Sign up for initial subscription and during the completion of subsequent Order for additional subscription. Arkadin’s listing available number may be inaccurate and does not constitute a representation or guarantee that such number is available for such assignment. In the event a chosen number is not available, Arkadin may remove such number from Client’s account and assign another one to the Client.

2.4.2. Number porting

The request of portability must be done by Client during the Online Sign up for initial subscription and during the completion of subsequent Order for additional subscription. In order to port-in a phone number to Arkadin, Client must keep its previous service active.

In order to comply with Telecommunications law and industry standards, the porting of phone numbers into or out of a Client’s account requires Client’s provision of detailed information to Arkadin and to Arkadin’s voice carriers. Therefore, the completion of any number port request may depend on factors outside of Arkadin’s control, including delays caused by Client and/or voice carriers.

Client represents and warrants that all information provided in connection with any request to port in or port out numbers to or from Spoka Services by Client or any party acting on its behalf will be true and accurate.

Client represents that Client or third party acting on behalf of Client shall not: (i) violate any applicable law or engage in any fraudulent or deceptive conduct in its porting-related requests; or (ii) engage in or facilitate “slamming” or the porting out of any phone number or (iii) change or attempt to change any telephony service provider without first obtaining the proper, requisite consents and authorizations.

In the event of account termination or cancellation, Client is solely responsible for working with its new provider to port out any numbers prior to termination or cancellation of client’s account or Services. All VOIP telephone numbers associated with the Client’s account which have not been ported to another provider may be released.

 

  1. SOFTWARE LICENSE TERMS

3.1 – End User License Agreement (EULA)

3.1.1 Subject to the terms and conditions of the Contract, Arkadin and its licensors grants Users, a worldwide, non­transferable, non-sublicensable, non-exclusive, limited and personal license to use one copy of the executable code of the Software in object code form only on a single device used by User. (A device is a personal computer or mobile device). This license is granted in connection with Client’s internal use of the Services.

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/or its licensors.

3.1.2 Client agrees not to, or allow others to: (i) try to access to or copy the Software or its source code forms, (ii) use the Software 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 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) sell, rent, lease, sublicense, assign 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 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 Software; (xiii) circumvent or disable any security or other technological features or measures of the Software; or (xiv) disclose the results of any benchmark tests of the Software to any third party without Arkadin’s Partners prior written approval; (xv) use the Software in connection with dangerous activities such as the operation of nuclear facilities, air traffic control or life support, where the failure of the Sofware could lead to death, personal injury, or extensive environmental damage; or (xvi) use the Software in violation of any applicable regulation or law.

3.1.3 Disclaimer of Warranties - EXCEPT AS SPECIFICALLY SET FORTH IN THE CONTRACT AND TO THE FULLEST EXTENT PERMITTED BY LAW, SOFTWARE, ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND ARKADIN AND ITS PARTNERS MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, QUIET ENJOYMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE IN TRADE, TOGETHER WITH SIMILAR WARRANTIES, WHETHER ARISING UNDER ANY LAW OR OTHERWISE.

3.1.4 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 its Partners.

3.1.5 Client agrees that Arkadin or its Partners may collect and use technical data and related information, including but not limited to technical information about Users’ device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates or support. Arkadin or its Partners may use this information, including sharing it with third parties, as long as it is in a form that does not personally identify Client or Users, to improve its products or to provide services or technologies to Client.

3.1.6 U.S. GOVERNMENT USE. The Software are deemed to be "commercial computer software" and "commercial computer software documentation," respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performing, displaying or disclosing of the Software by the U. S. Government shall be governed solely by these terms of the license and shall be prohibited except to the extent expressly permitted by these terms of the license.

3.1.7 The EULA is effective until terminated. Client may terminate it at any time by removing from its devices the Software and destroying all copies of the Software in its possession. Unauthorized copy of the Software or otherwise failing to comply with the terms and conditions of this User license terms will result in its automatic termination and will make available to Arkadin and its Partners other legal remedies. Upon termination of the EULA, the license granted herein will terminate and Client and Users must immediately destroy the Software and accompanying documentation, and all back-up copies thereof.

3.1.8 The EULA shall be governed by the substantive laws of the State of Maryland, USA, without regard to its conflicts of laws principles. Clients hereby submit to the exclusive jurisdiction of the federal and state courts in the State of Maryland in connection with any dispute arising out of this EULA. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this EULA and is hereby expressly excluded.

3.1.9 Software includes third parties’ software license agreement as available here

 

  1. INFRIGEMENT AND INDEMNIFICATION

4.1 Infringement Defense. Arkadin will defend the Client from any actual or threatened third party claim that the Software/Services 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 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).

4.2 Infringement Indemnification. Arkadin will indemnify Client against: (i) all damages, costs, and attorneys’ fees finally awarded against Client in any proceeding as specified in the article 4 ; (ii) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Client in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without Arkadin’s consent after Arkadin has accepted defense of such claim); and (iii) if any proceeding arising as specified in the article 4.1 is settled, Arkadin will pay any amounts to any third party agreed to by Arkadin in settlement of any such claims.

4.3 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/Services with third party software or services if such infringement would have been avoided but for such combination, operation, or use; (ii) designs, requirements, or specifications for the Software/Services 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/Services 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/Services 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/Services 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/Services.

Client hereby agrees that it will reimburse Arkadin for any costs or damages that result from these actions.

4.4 Mitigation of infringement action.  If Client’s use of the Software/Services is, or in Arkadin’s reasonable opinion is likely to become, enjoined or materially diminished as a result of a proceeding arising under the article 4.1, then Arkadin will either: (i) procure Client’s continuing right to use the Software/Services; (ii) replace or modify the Software/Services in a functionally equivalent manner 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 (iii) terminate the licenses with respect to the Software subject to the infringement claim and refunds to Client all unused subscription fees for the Software that Client pre-paid.

4.5 Exclusive Remedy. The article 4 states Arkadin and its Partner’s sole and exclusive liability, and Client’s sole and exclusive remedy, for the actual or alleged infringement of any third-party Intellectual Property right by the Software/Services.

 

  1. CALLER ID NAME (CNAM)

Client and its Users shall not undertake any unfair, misleading or aggressive sales and marketing activities using CNAM services. If User uses CNAM services in order to provide any form of direct marketing activities, Client shall be solely responsible to comply with all applicable laws such as, but not limited to anti-spam regulations, consumer protection laws and marketing regulations in respect to such activities.

Client warrants that all data transmitted from Client to Arkadin for CNAM Service (“CNAM Data”) are accurate to the best of Client’s knowledge in order to prevent any abuse case such as identity theft or misuse. In this respect, Client shall verify that the CNAM Data correspond with their identity or identity of a group of persons within the Client organization (such as client support for instance) and that no racist, sexual, discriminatory, vulgar or offensive data shall be communicated to Arkadin. Furthermore, Client warrants it has the right and authority to provide such CNAM Data to Arkadin. Client assumes sole responsibility (without any contractual limitation of liability being applicable) for the accuracy of all CNAM Data and shall indemnify and hold Arkadin, Arkadin’s representatives and employees, harmless from and against any and all claims, damages, liabilities and expenses (including legal fees, costs and expenses) suffered or incurred by Arkadin and Arkadin’s representatives and employees arising out of or related to CNAM Data.

 

  1. ACCEPTABLE USE POLICY

Client’s use of the Services is subject to Arkadin’s Acceptable Use Policy (AUP) which ensures the quality and reliability of the Services.  Arkadin will evaluate the reasonable use of the Services based on the factors, including but not limited to, historical usage volumes, seasonal business fluctuation, business downturn and upturn, and restructuring, etc.  If, in Arkadin’s reasonable opinion, Client’s use is determined in violation of the Acceptable Use Policy, Arkadin reserves the right to make any adjustment to the rates and usage as it deems appropriate.

6.1 Acceptable Use Policy: The Services are provided with the following Acceptable Use Policy designed to prevent fraud and abuse of the Services. As an example, would not be considered as a legitimate use of the Services, the following:

- Services shall not be used in any manner that may expose Arkadin, its Partners or any of their personnel to criminal or civil liability;

- Re-selling subscription minutes or sharing subscription or minutes;

- 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;

- Call center or mass marketing inbound calls, voting line, continuous and extensive call forwarding;

-  fax broadcast or fax "blasting”;

- Unusual calling patterns inconsistent with normal, individual subscription use.

- Doing any of the following without permission from Arkadin: (a) unauthorized access of the system or network, (b) monitoring data or traffic, (c) probing, scanning, and/or testing firewalls, (d) testing the vulnerability of a system or network or (e) breaching the security or authentication routines of a system or network;

- mailbombing, flooding, overloading, attacking or otherwise interfering with a system or network;

- operating a server in connection with the Services in an “open relay” configuration (a configuration whereby a mail server processes email messages where neither the sender nor the recipient is a local user);

- auto-dialing or predictive-dialing (sometimes referred to as “robo-dialing”) or any other excessive traffic, including, but not limited to conducting or forwarding surveys and contests, telemarketing, traffic stimulation practices;

- use of an open telephone line as a monitoring, intercom or similar service.

Any use of the Services or any other action that causes a disruption in the network integrity or threatens or compromises the security of Arkadin and/or its Partners, its vendors, or the Services whether directly or indirectly, is strictly prohibited and permits Arkadin to terminate the Services and the Contract without prior notice at the sole discretion of Arkadin.

6.2 ELECTRONIC RECORDING. User acknowledges and understands that there are laws and statutes governing the electronic recording of telephone conversations and that Arkadin will not be liable for any illegal electronic recording done by the Client. Because User circumstances vary widely, Users agrees to carefully review its own circumstances when deciding whether to use the recording features of the service and it is User's responsibility to determine if the electronic recordings are legal under applicable laws. Arkadin is not responsible for any misinterpretation, lack of understanding or lack of knowledge regarding the use of electronic recordings or the use of its Services by User, whether legal or illegal, and the Client will indemnify and hold Arkadin and its Partners harmless for any claims, damages, fines, or penalties arising out of User's failure to adhere to applicable electronic recording laws.

6.3 CLI/ANI manipulation or spoofing in violation of applicable law, rule or regulation is strictly forbidden, and Arkadin and its voice carriers support industry standard CLI presentation and restrictions. Arkadin will not be liable for any failure to provide or delay in providing the Services or any part thereof if such failure or delay is caused by a change of CLI. Client will defend, indemnify, and hold harmless Arkadin, its voice carriers and their respective Affiliates against all losses suffered or incurred by Arkadin, its Affiliates, or its/their voice carriers and voice carriers’ subcontractors arising out of or related to a change of CLI.

6.4 Re-charging: Client understands and accepts that Arkadin is entitled to retro-charge any unfair use or use above the limits mentioned in the Order according to the applicable per minute rates.

 

  1. FREE TRIAL

Client may be granted with a one-month free trial to test the Services. Such free trial is subject to the Contract (except invoice and payment sections). Upon expiry of this free trial period, and unless termination of the Services by Client one (01) day prior to the end of the free trial period, the Contract shall continue according to the present terms and conditions.

 

  1. DISCLAIMER

China: Due to the uncertainty of the legal status of the use of Spoka Services in China, which is not clearly either prohibited or authorized, any use of the Services in China will be done at Client’s own risk without any warranty of any kind. In addition, the Client shall commit not to resell or distribute VOIP telephone services in China.

The Client shall indemnify and hold Arkadin, Arkadin’s representatives and employees, harmless from and against any and all claims, damages, liabilities and expenses (including legal fees, costs and expenses) suffered or incurred by Arkadin and Arkadin’s representatives and employees arising out of or related to the use of the Services by User(s) in China.