These Online Standard Terms and Conditions (hereinafter referred as “STC”) apply to SPOKA Services and to any Equipment sold as part of such Services, following electronical submission (i) of an initial Order during the Online Sign up and/or (ii) for any subsequent Orders, on the Portal.

These STC, any applicable Specific Terms of Use for Services (hereinafter referred as “STU”) and/or sale Equipment conditions which by this reference are incorporated herein, and the initial and subsequent Order(s) are deemed to be a binding contract (hereinafter referred to as “Contract”) between Arkadin Ltd, an English company with its office at 26-28 Hammersmith Grove, Hammersmith, London W6 7HA, United Kingdom (the “Supplier”) and the legal entity identified in the Order (hereinafter referred to as “Client”). Arkadin and the Client may be individually referred to as a “party” or collectively as the “parties”.

ARKADIN PROVIDES SPOKA SERVICES AND EQUIPMENT FOR BUSINESS USE ONLY. BY ELECTRONICALLY SIGNING THE CONTRACT, CLIENT (A) AGREES TO BE LEGALLY BOUND BY ITS TERMS AND (B) REPRESENTS AND WARRANTS THAT: (I) THE SIGNATORY IS UNDER LEGAL AGE TO ENTER INTO A BINDING CONTRACT; AND (II) HAS THE RIGHT AND AUTHORITY TO ENTER INTO THE CONTRACT AND TO BIND THE CLIENT TO THESE TERMS. IF CLIENT DOES NOT AGREE TO THE TERMS OF THE CONTRACT, NEITHER CLIENT NOR ITS USERS MAY DOWNLOAD, INSTALL, AND/OR USE THE SERVICES OR EQUIPMENT.

DEFINITION

“Administrator” means any natural person or entity, which manages the Client account on behalf of the Client.

“Affiliate” means, now or in the future, any other entity that (i) directly controls; (ii) is under common control with; or (iii) is controlled by Supplier or the Client. An entity shall be considered as controlling another entity if it owns, or controls, at least fifty (50) percent of the voting stock or other ownership interest of the other entity.

“Client Data” means data and information (including personal data) (i) transferred from Client and User(s) to Supplier and/or its Partners; (ii) gathered by Supplier and/or its Partners, for the supply of Services.

"Content" means (a) the content of the conversations, audio, web or video conferences of any kind and on any medium (i) shared or transferred by the Users;  (ii) recorded at the request of Users or Client; or (iii) downloaded by the Users in connection with  the use of the Services; (b) any medium of any kind provided by User(s) for the performance of the Services; or (c) where applicable, the emails and all electronic documents attached thereto regardless of their format.

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

“Effective Date” means the date of execution of the initial Order.

“Electronic Signature” means, for the purpose of this Contract, an electronic process, including clicking a digital button to accept a contract or other document attached to or logically associated with and executed by a person who decide to enter into the contract.

“Equipment” means the physical equipment and systems provided by Supplier in connection with the Services. Any new Equipment introduced on Supplier’s standard price list in the future may be incorporated in this definition subject to new prices conditions.

“Intellectual Property” means all intellectual property of any kind whatsoever and however embodied which may subsist or be capable of protection in the world, including, a person’s name, likeness, voice, photograph or signature, as well as software, data base and domain names, whether or not registered or registrable, updates, upgrades, improvements, enhancements, modifications, configurations, extensions, and derivative works of any of the foregoing, notwithstanding any other provision in the Contract and including without limitation rights of personality, privacy, and publicity, copyrights, know-how rights, trade secrets rights, graphics rights, logos rights, patent and trade names and trademarks, right to apply for the registration of such rights, whether existing in Europe or otherwise.

“Online Sign up” means the electronical subscription process to order SPOKA Services including the Electronic Signature.

“Order” means the electronic order submitted by Client to Supplier using the order form as made available by Arkadin on the Website or through the Portal, for Services and/or Equipment to be supplied under the terms of the Contract.

“Partner” means a company which (i) provides to Supplier technical solutions and /or Software that Supplier integrates in the Services; and/or (ii) authorizes Supplier to resell its products and/or solutions; and/or (iii) provides to Supplier and/or its Clients access to its platform.

“Personal Data” means any information relating to an identified or identifiable natural person as defined by the European General Data Protection Regulation (GDPR).

“Portal” means the digital portal through which the Administrator controls settings and/or order additional Services on behalf of Client.

“Release” means a version of a Software that incorporates corrections or provides functional or performance improvements.

“Services” means Spoka services as described on Spoka Website and any additional services ordered by Client and accepted by Supplier.

“Software” means any software provided or made available by Supplier and its Partners to Client as part of the Services and the Documentation associated. Software may be (a) any machine readable (object code) version of a computer program or components to be installed on User computer systems and any Release provided to Client and/or (b) provided on Software-as-a Service (SaaS) and subscription basis including all patches, bug fixes, upgrades and Releases to the Software.

“User(s)” refers to (i) the Administrator; and (ii) any person who uses the Services.

“Website” refers to Spoka website which is accessible at www.spoka.com from any Internet access.

Client acknowledges and agrees that i) Supplier is its sole direct contracting party; and ii) this Contract does not give Client any direct and automatic claim against Supplier’s Partners.

 

  1. Equipment and Service description

The Services STU and Equipment particular conditions are incorporated into and form a part of this Contract and are available here.

Spoka services descriptions are available here.

 

  1. Ordering process

Client may order Services by electronic submission either (i) by using the Online Sign up for initial subscription and, (ii) on the Portal, by completing subsequent Orders. An Order will become binding once submitted by Client and accepted by Supplier. Supplier shall be deemed to have accepted an Order by performing of the requested Services.

 

  1. Charges, Invoicing and Methods of Payment

3.1 Charges. Equipment and Services prices are identified on the Website and/or on the Portal. Client shall pay the Services charges as set out in the Order. Additional charges may result if Client activates additional features, exceeds usage thresholds, or purchases additional Services or Equipment. All rates, fees, and charges are exclusive of applicable taxes or regulatory fees and customs duties which may apply to the Services or Equipment sold, for which Client is solely responsible. Taxes may vary based on jurisdiction and the Services provided. If Client claims tax exemption, Client shall provide Supplier with a current, valid exemption certificate from the relevant tax authority.

Recurring charges for the Services begin on the Effective Date and will continue for the term of the Services. Outbound calling rates will be applied based on the rate in effect at the time of use as described here: https://www.spoka.com/en-us/spoka-meet-international-audio-calls-rates/

In the event that (i) any regulatory agency, legislative body or court creates or imposes regulations, laws or other requirements relating to the Services and Equipment, (ii) a third party provider (including Partners) changes tariffs, that result in a significant increase in the costs incurred by Supplier in providing the Services, Supplier may increase Services charges in the same proportion to the increase in Supplier’s costs. Supplier will give Client at least thirty (30) days’ notice in writing of such increase (except for clause (i) for which Supplier may shorten this notice period to seven (7) days). Client will however have the right to terminate the part of the Services affected by the increase as of the date of the implementation of the new charges, without any penalty, by giving Supplier a written notice within ten (10) days from the date of receipt of the notice letter from Supplier. The termination will be effective as of the date of new price list implementation.

3.2 Invoicing. Client will receive electronic invoices in GBP. Subscription and recurring charges are billed monthly or annually either in advance or in arrears and non-recurring and extra-charges are billed monthly for the Services in the following month.

3.3 Payment. All Services and Equipment must be paid with a valid credit or debit card at the time of the Online Sign up. By providing its card number information, Client is expressly authorizing all Services and Equipment charges and fees to be charged to such payment card, including Services recurring payments billed on a monthly or annual basis. In addition, Client’s provided card shall be used for additional services and Equipment Order, overdue balance charges or any overage charges where Client has exceeded usage or threshold limits.

Credit and debit card payments are subject to the approval of the card issuer, and Arkadin will not be liable in any way if a card issuer refuses to accept a credit or debit card payment for any reason. Client is responsible for any credit card chargeback or similar fees for refused or rejected payments that Arkadin is entitled to charge under the Contract. If the payment card is declined or fails for any reason, Arkadin will send Client a notice using the contact information associated with Client’s account. Arkadin may continue to attempt charging Client’s payment card for outstanding charges and additional fees along with any other rights and remedies available to Arkadin under the Contract, at law or in equity.

Furthermore, overdue balances shall be subject to i) a service charge at the rate set by the Bank of England, plus eight (8) percentage points per month, on the amount due on each unpaid invoice and accruing on a daily basis until the payment is made; and ii) a lump sum of £40 as compensation for recovery cost according to pursuant to the commercial debts Act 1998 amended by the commercial debts regulations 2013. Arkadin is entitled to require the payment for any additional expenses, fees or costs incurred by Arkadin in the recovery or collection of any amounts due by the Client under this Contract if these are higher than the lump sum stated in ii).

 

  1. Term

The initial period of the Contract shall commence on the Effective Date and shall continue during the term set out during the Online Sign Up or during the subsequent Order process (“Initial Period”). After the Initial Period, the Contract shall automatically renew for successive periods of the same length as the Initial Period (“Renewal Period”) unless one party gives written notice of termination to the other at least ten (10) days prior to the end of the Initial or Renewal Period in the case of monthly renewals or at least three (3) months before the end of the Initial or the Renewal Period in the case of annual renewals.

 

  1. Client’s Obligations

Client:

5.1 undertakes to provide Supplier within the agreed deadlines, with all information necessary to supply the Services and to update such information in writing (including without limitation, any change of address). Client shall be solely responsible for any consequences caused by failure or delay in providing or updating such information.

5.2 shall be responsible for (i) ensuring that its own systems and equipment comply with the technical requirements as notified by Supplier which are necessary to use the Services/Equipment; (ii) protecting itself from the risk of losing data, files and programs by making regular backups and using antivirus software which is updated regularly; and (iii) implementing a rigorous internal password management policy.

5.3 undertakes to keep all access numbers, passwords and personal identification numbers used in connection with the Services confidential, prevent unauthorized access thereto and generally safeguard such information to ensure that there is no unauthorized use of the Services. Spoka licenses are personal licenses assigned to a designated User. Spoka licenses may not be shared, transferred or used by anyone other than the User to whom the license is assigned. The identification of the User must be unique to an individual and may not be of a generic nature.

5.4 shall be responsible for (i) the use of the Services and/or Equipment by the Users; and (ii) the Content and its use by the Users.

5.5 shall indemnify, defend and hold Supplier, Supplier’s officers, directors, employees, contractors and other agents (“Supplier’s Representatives”), harmless from and against any and all (a) claims, damages, liabilities and expenses (including reasonable legal fees, costs and expenses) suffered or incurred by Supplier and Supplier’s Representatives and all (b) claims, damages, liabilities, amounts and expenses which Supplier has indemnified the Partners against; arising out of or related to: (i) the misuse of the Services by the Users including use which is illegal, immoral, fraudulent or beyond the scope of the Contract; (ii) the Content and its use by the Users; (iii) Client Data; and (iv) Users’ infringement of any Intellectual Property rights of Supplier or of any other third parties caused by the use of the Services by any Users.

Client is solely liable for any services or software which is not provided by Supplier and/or its Partners and which are used in combination with the Services. Supplier shall not have responsibility or liability whatsoever arising, in full or in part, from any third-party software or services integration not provided by Supplier under the Contract.

 

  1. Supplier’s Obligations

6.1 Supplier provides the Services and performs its obligations with reasonable care and skill in accordance with the standards which are normally provided by a skilled professional firm which performs similar services to those provided under the Contract.

6.2 Client recognizes that provision of the Services depends on (i) the reliability, availability and continuity of connections with third parties (such as telecom carriers, public internet, Client’s equipment, etc.) and (ii) accuracy and integrity of information communicated by Client. Supplier cannot be held liable for a Service interruption or delay outside of Supplier’s or its Partners’ control. Supplier may be required to suspend Services to enable maintenance, improvement and upgrading operations to be conducted or in case of scheduled maintenance or maintenance in response to emergence.

6.3 Supplier will use its reasonable endeavors to inform Client of the causes and the estimated duration of the suspension. Client shall forthwith inform the Users of any suspension of the Services.  During the suspension period, Client and Supplier will use their best endeavors to minimize any inconvenience caused by such suspension of the Services.

 

  1. Force Majeure

In an event of force majeure, the affected party shall notify in writing the other party as soon as practicable. Neither party shall be in breach of the Contract, nor liable for any failure or delay in performance of any obligations under the Contract arising from or attributable to force majeure, which shall include, but not be limited to, events that are unpredictable, unforeseeable or irresistible, such as any severe weather, earthquake, fire, epidemic, acts of terrorism, biological warfare, outbreak of military or civil hostilities, explosions, strikes or other labor unrest, sabotage, any law, order or requirement of any governmental agency or authorities or interruption of service due to telecom carriers events.

Only the material or geographical part of the Contract affected by the event of force majeure shall be suspended during such event.

During the suspension period, the parties will use their best efforts to limit the duration and the consequences of such event. If the force majeure lasts for more than thirty (30) days, the parties undertake to negotiate in good faith a contract adjustment. If it becomes impossible to continue the performance of the Contract, each party will be entitled to terminate the Contract by sending a written notice to the other party.

 

  1. Suspension and Termination

8.1 Services Suspension

Supplier may suspend Users’ use of any Service if such use is determined by Supplier, in its sole but reasonable discretion, to be (i) in violation of the terms of the Contract (including in case of non-payment on the due date) or the  applicable law or any policy provided or made available to Client; (ii) resulting in a degradation of the Service; (iii) otherwise damaging or likely to damage the rights or property of Supplier or its Partners, until such time as such violation, degradation, or damage has been remedied.

Supplier shall provide notice of such violations or defaults prior to exercising its right of suspension except in case of emergency, or such notice is legally prohibited or commercially impracticable.

Furthermore, Supplier reserves the right, in its sole but reasonable discretion, to delete, remove or block access to, all or part of any Content that may violate or infringe the applicable law, the service use policy, or any third-party rights, or otherwise exposes or potentially exposes Supplier to civil or criminal liability. Suspension will not relieve Client of its obligation to pay the Service charges or other fees or amounts payable under the Contract. In the event that the Services are reconnected, Client may also be required to pay a re-connection fee except in case of suspension due to a force majeure event or maintenance. Supplier shall not be responsible for the damages arising from the Service suspension under this article.

 

8.2 Termination

8.2.1 Causes of the termination

Without prejudice to any other rights or remedies to which the parties may be entitled pursuant to this Contract or the law, each party, may:

  1. a) terminate the Contract if the other party commits a material breach of the Contract provided that if the breach is capable of remedy, such other party does not remedy the breach within thirty (30) days after receiving a written notification by the non-breaching party to remedy such breach.
  2. b) immediately terminate the Contract if (i) a receiver or administrator is appointed over the other party or its assets or if the other party is declared bankrupt, placed under liquidation or is subject of similar 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 business.
  3. c) terminate the Contract for force majeure in accordance with Article
  4. d) terminate immediately the Contract if the Users fail to comply with the obligations mentioned in Article7 or in the STU.

In the event of any change in law or regulation that would prohibit or otherwise materially interfere with Arkadin’s ability to provide Services, Arkadin may terminate the affected Services or the Contract or otherwise modify the terms thereof.

8.2.2 Effect of termination

If the Contract is terminated, the Client shall immediately pay Supplier (i) all amounts that have accrued prior such termination and; (ii) for the Services ordered for a fixed subscription period, the remaining balance of all fixed subscription fees until the end of the subscription period specified in the Order except if the termination is due to a force majeure case or in case of termination which results of Arkadin’s material breach; and (iii) to the extent applicable, prices for Equipment ordered by Client in accordance with the Equipment particular conditions.

If Client terminates the Services or the Contract in its entirety due to Arkadin’s material breach as specified in the article 8.2.1a) or in case of force majeure, Arkadin will reimbourse the amount paid in advance and not used by Users.

Client shall immediately cease using the Services and undertakes to ensure that Users cease using the Services.

 

  1. Confidentiality and Data Protection

9.1 Confidentiality

9.1.1 During the pre and post contractual periods and during the performance of the Contract, each party undertakes to keep strictly confidential any information regarding the other party or its Affiliates, Partners, suppliers and subcontractors that they may have mutually exchanged, including, but not limited to trade secrets, network and infrastructure information, traffic volume, software plans or any other product or projects in development, services, marketing or business plans, financial information, all documents, access information for the Services and passwords or any other information which may promote the interests of Supplier’s competitors, as well as any information which are by nature confidential (hereinafter referred as to the “Confidential Information”).

9.1.2 Each party undertakes to hold such Confidential Information of the other party in strict confidence and shall not disclose it  during the Contract term and for a period of three (3) years after the end of the Contract, except for any Confidential Information which: (a) was generally available or known to the public; (b) was already in possession of a party prior to disclosure under the Contract; (c) has been independently developed by such party; or (d) was lawfully disclosed by or to a third party.

9.1.3 In the event that the recipient of the Confidential Information is required to disclose the Confidential Information by any court order or by any governmental authority, the recipient takes the necessary steps to inform, to the extent permitted by law, the disclosing party of such request. The Confidential Information of each party shall be safeguarded by the other party to the same extent that it safeguards its own confidential information relating to its own business.

9.1.4 During the performance of the Services, each party agrees to limit access to such Confidential Information on a “need-to-know” basis only to employees, consultants, authorized subcontractors, Affiliates, agents, Partners or representatives who shall comply with the confidentiality obligations under this Contract and are duly informed of the confidential nature of the Confidential Information.

9.1.5 Neither party shall disclose any information to a third party (except those listed in the paragraph above) without the prior written approval of the other party.

9.1.6 Neither party will disclose the terms of the Contract to any third party without the consent of the other party, except as required by securities or other applicable laws.  Notwithstanding the above provisions, each party may disclose the terms of the Contract (i) in confidence, to accountants, auditors, banks, and financing sources and their advisors; (iii) in confidence, in connection with the enforcement of the Contract or rights under the Contract; or (iv) in confidence, in connection with a merger or acquisition or proposed merger or acquisition, or the like. The recipient shall be responsible for the use of the Confidential Information by its agents, employees, consultants, and authorized subcontractors, Affiliates, Partners, authorized agents or representatives who have access to the Confidential Information.

On termination of the Contract, the recipient shall immediately return the Confidential Information upon receipt of written request by the disclosing party or certify that such information has been destroyed pursuant to the disclosing party’s request. Nevertheless, each party is entitled to retain a copy of the Confidential Information for use for record keeping or where otherwise required to be retained by law.

 

9.2 Personal Data Protection

The Supplier respects Client privacy and applies principles mentioned in Arkadin privacy policy and Arkadin privacy white paper available here.

Supplier's Data Processing Agreement for Services (“DPA”), available here describes the parties' respective roles and obligations for the processing and control of Personal Data that Client provides to Supplier as part of the Services.

This DPA shall take effect and become binding between the Supplier and Client to the extent that (i) Arkadin processes client’s personal data for which Client is data controller; and (ii) a DPA is required under the applicable data protection legislation; and (iii) Client completes it, signs it and submit it in accordance with the guidelines mentioned at the preamble of the DPA.

 

  1. Liability

10.1 FOR THE SAKE OF CLARITY, NOTHING IN THIS CONTRACT EXCLUDES OR LIMITS THE LIABILITY OF ONE PARTY FOR (I) DEATH OR PERSONAL INJURY (II) FRAUD OR FRAUDULENT REPRESENTATION; OR (III) ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED BY MANDATORY PROVISIONS OF LAW;

10.2 EACH PARTY SHALL BE SOLELY LIABLE FOR THE FORESEEABLE CONSEQUENCES OF THE DIRECT AND CERTAIN INJURIES. SUBJECT TO THE CLAUSE 10.1, TO THE FULLEST EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANY PROVISIONS TO THE CONTRARY AND WHETHER CAUSED BY BREACH OF WARRANTY, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE CAUSE OF ACTION, EVEN IF CLIENT IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING , IN NO EVENT WILL SUPPLIER AND ITS PARTNERS BE LIABLE FOR (I) CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (II) LOSS OF PROFIT, REVENUE, CONTRACTS OR GOODWILL; OR (III) LOSS OR CORRUPTION OF DATA OR INFORMATION; OR (IV) ANY DEGRADATION WHICH OCCURS IN RELATION TO THE NETWORK OR ASSOCIATED SOFTWARE OR CLIENT’S HARDWARE; WHETHER OR NOT THAT CLIENT WAS ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE

10.3 SUBJECT TO CLAUSES 10.1 AND 10.2, SUPPLIER AND SUPPLIER REPRESENTATIVE’S MAXIMUM AGGREGATE LIABILITY IN CONTRACT (INCLUDING WARRANTY AND INDEMNIFICATION CLAIMS AND SERVICE CREDITS), TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION, RESTITUTION OR ANY OTHER LEGAL THEORY FOR DAMAGES ARISING OUT OF OR RELATING TO THIS CONTRACT SHALL NOT EXCEED THE AMOUNT PAID BY THE CLIENT FOR SUCH SERVICE THAT GAVE RISE TO THE DAMAGE OVER THE LAST TWELVE (12) MONTHS PRECEDING SAID DAMAGE, EXCLUDING ANY APPLICABLE TAXES, GOVERNMENTAL FEES AND VAT. THIS IS AN OVERALL LIMIT AND NOT A LIMIT PER INCIDENT.

10.4 The parties understand that the price agreed in the Contract reflects the allocation of the risk as negotiated between the parties. In addition to the foregoing, the parties agree that the limitation of their respective liabilities as set out in this clause 10 are essential and material terms of the Contract and the parties would not have concluded this Contract in the absence of such provisions.

 

  1. Intellectual Property

11.1 Trademark - SPOKA is an Arkadin registered trademark.

11.2 Background - Client acknowledges and agrees that Supplier and its Partners own all Intellectual Property rights, title and interest in and to the Services/Software for which the end user license terms are specified in the appropriate STU. Nothing in this Contract or Supplier’s performance of the Services will constitute or be deemed a transfer of any Intellectual Property rights to Client and/or Users.

11.3 Client Data - Client warrants it has the right and authority to provide Client Data to Supplier. Client hereby grants to Supplier and its Partners a worldwide, nonexclusive, fully-paid up, royalty-free right to use Client Data as reasonably necessary to carry out the Services.

Subject to Client’s prior authorization granted in writing, Client authorizes Supplier to reference the names, trademarks and corporate logos of Client on marketing literature, website, commercial representations and in any list of Client references.

11.4 Feedback.  If User provides any feedback to Supplier and its Partners concerning the functionality or performance of the Services (including identifying potential errors and improvements), User hereby assigns to Supplier all right, title, and interest in and to the feedback, and Supplier and its Partners are free to use the feedback without payment or restriction.

 

  1. Assignment and Sub-contracting

Each party may assign or transfer any of its rights or obligations under the Contract, in whole or in part, with the written consent of the other party. Notwithstanding the foregoing, Arkadin may assign this Contract to (i) its Affiliates, and (ii) an entity in which the assigning party maybe merged or consolidated, or which purchases all or substantially all Arkadin’s assets or equity interest.

The assignee or transferee will assume all of the rights and obligations of the assignor or transferor under the Contract and will be deemed the signatory of the Contract without any further Contract changes or amendment.

This clause shall not be construed as limiting Supplier’s right to use subcontractors provided that Supplier shall obtain Client’s prior consent for such subcontracting and remain liable for any such Services provided by a subcontractor.

 

  1. General

13.1 Failure by a party to enforce any clause of the Contract, whether temporarily or permanently, shall under no circumstance be construed as a waiver of the rights of such party under the clause.

13.2 Each party warrants that it has the necessary rights, licenses and permissions to enter into the Contract and perform its obligations provided for therein. Client’s and its Users’ use of the Services must at all times comply with all applicable laws and the Contract.

13.3 If any provision of the Contract for any reason is found to be invalid, such invalidity shall not affect any other provisions of the Contract. The parties will replace any unenforceable provision with a provision that is enforceable and that comes as close as possible to expressing the intention of the original provision.

13.4 It is understood and agreed that each party is an independent contractor and that neither party shall be considered to be an employee, agent, distributor or representative of the other party.

13.5 In connection with any actions or activities associated with the Contract or in connection with the relationship between the parties, neither party shall engage in any unlawful trade practices or any other practices that are in violation of any applicable law that prohibits bribery or similar activity.

Each party shall ensure that it as well as its Affiliates or its sub-contractors (i) will not either directly or indirectly, seek, receive, accept, give, offer, agree or promise to give any money, financial benefits, or other thing of value from or to anyone (including but not limited to government or corporate officials or agents) as an improper inducement or reward for or otherwise on account of favorable action or forbearance from action or the exercise of influence; or (ii) will establish appropriate safeguards to protect itself from such prohibited actions.

Each party shall, upon request from the other party, provide evidence of the steps being taken to avoid prohibited actions (such as, in particular, the establishment of internal policies, practices, and controls with respect to such laws).

To the extent permitted by the relevant authority, each party shall promptly inform the other party of any official investigation with regard to alleged breaches of the above laws that are related in any way to this Contract.

13.6 The parties shall do their utmost to meet the objectives that they proposed to achieve in the Contract. In particular, the party that suffers from the non-fulfilment of an obligation must take all reasonable measures in order to reduce to a minimum the damage likely to result therefrom. If it fails to do so, it can obtain from the other party only compensation for the damage that it could not avoid.

13.7 Acceptable use policy.  Client agrees to ensure that Users use the Services in accordance with the acceptable use policy available at http://terms.arkadin.com/Services-Use-Policy.pdf.

13.8 Electronic communications - Client agrees that all agreements, notices, disclosures and other communications that Supplier provides to Clients electronically satisfy any legal requirement that such communications be in writing, unless mandatory applicable laws specifically require a different form of communication.

13.9 Evaluation - Supplier may invite Client to test beta versions of the Services. Client may need to agree to additional terms for beta services. Beta services is provided for evaluation and feedback purposes and may not be used in a production environment. Client understands that beta Services are not generally released and, therefore, are unsupported and may contain bugs or errors. Client accepts the beta Services “AS-IS,” without warranty of any kind, and Supplier and its Partners shall not be deemed responsible for any problems or consequences related to Client’s use of the beta Services. The beta Services may never be generally available, and Supplier may discontinue beta Services in its sole discretion at any time and delete any Content or data on the beta Services without liability Client.

13.10 This Contract is executed electronically. Each party agrees that an Electronic Signature, whether digital or encrypted, is intended to authenticate this Contract and to have the same force and effect as manual signatures.

13.11 Except as otherwise provided, the contract may only be modified by a written amendment (provided electronically or otherwise) executed by authorized representatives of both parties. Notwithstanding the foregoing, Supplier may update STC, STU or any of its policies from time to time by providing notice of such update to Client. Such update will become effective thirty (30) days after the notice to Client. In the event that any update would be of material detriment to Client and is not required by law, Client must inform Supplier of its objection within ten (10) days of receiving the notice provided under this clause. If the parties, negotiating in good faith cannot reach agreement within thirty (30) days, Client may terminate the portion of the Services affected by the change without penalty by written notice to Supplier. Any use of the Services after the effective date of the change will be deemed Client’s acceptance of the said change. Any additional Order sent by Client after the Effective Date shall be subject to the same terms and conditions set forth in the Contract unless if an updated version has been published on the Website. 

13.12 Export Control

Each party shall comply with United States and foreign export control laws and regulations. Client acknowledges that the Services, Software and Documentation are subject to the U.S. Export Administration Regulations (the “EAR”) and that Client shall comply with the EAR. Without limiting the foregoing, (i) Supplier and Client each respectively represent that: (A) it is not located in any country that is subject to U.S. export restrictions (currently including, but not necessarily limited to, the Crimea Region of Ukraine, Cuba, Iran, North Korea, Sudan and Syria) (“Restricted Countries”); and (B) it is not prohibited from participating in U.S. export transactions by any federal agency of the U.S. government; (ii) Client represents that it shall not use the Services, Software and Documentation from any Restricted Country or in the design, development or production of nuclear, chemical or biological weapons, rocket systems, space launch vehicles, sounding rockets or unmanned air vehicle systems; and (iii) the Supplier represents that it shall not provide the Services, Software and Documentation from any Restricted Country. In addition, Client is responsible for complying with any local laws which may impact Client’s right to import, export or use the Services, Software and Documentation.

13.13 In the event of any conflict between the documents comprising the Contract, precedence will be given to the documents in the following descending order: (i) the applicable Order; (ii) the applicable Service Terms of Use and the Equipment sales conditions; (iii) the present Online Standard Terms and Conditions; and (v) and any other document expressly referred to in the Contract which governs the Services and the sale of Equipment.

13.14 Audit - 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.

13.15 To the extent allowed by law, the English version of the Contract is binding, and other translations are for convenience only.

13.16 Nothing in the Contract is intended to give anyone who is not a party to it the right to enforce its terms whether pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise.

 

  1. Dispute Resolution

Any dispute arising out of or in connection with the Contract shall be referred to the parties’ respective account managers, who shall attempt to resolve the matter within fourteen (14) business days of its referral.  Except to protect the parties’ right to action or to prevent imminent damages, neither party shall bring proceedings in respect of any dispute arising out of the Contract in any court of law until the aforementioned process has been completed.

 

  1. Applicable Law and Jurisdiction

This Contract shall be interpreted and governed by the laws of England and Wales without regard to its conflict of law provisions, and the parties agree to submit to the exclusive jurisdiction of the courts located in or with responsibility for London to resolve any disputes arising hereunder.