TARKiiZ TERMS OF SERVICE

EFFECTIVE: May 9, 2022

IMPORTANT, READ CAREFULLY: YOUR USE OF AND ACCESS TO THE WEBSITE, PRODUCTS, SERVICES, ASSOCIATED SOFTWARE AND TECHNICAL INFORMATION (COLLECTIVELY, THE “SERVICES”) OF TARKiiZ COMMUNICATIONS, INC. (“TARKiiZ”) IS CONDITIONED UPON YOUR COMPLIANCE WITH AND ACCEPTANCE OF THESE TERMS, WHICH INCLUDE YOUR AGREEMENT TO ARBITRATE CLAIMS. PLEASE REVIEW THOROUGHLY BEFORE ACCEPTING.

BY CLICKING/CHECKING THE “I AGREE” BUTTON/BOX, ACCESSING THE TARKiiZ WEBSITE OR BY UTILIZING THE TARKiiZ SERVICES YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE AND ALL EXHIBITS, ORDER PROCESSES, AND INCORPORATED POLICIES (THE “AGREEMENT” OR “TOS”). THE TARKiiZ SERVICES ARE NOT AVAILABLE TO PERSONS WHO ARE NOT LEGALLY ELIGIBLE TO BE BOUND BY THESE TERMS OF SERVICE.

TARKiiZ will provide the Services, and you may access and use the Services, in accordance with this Agreement. TARKiiZ may provide any of the Services hereunder through any of its Affiliates. If You order Services through an online webpage or an order form (each an “Order Process”), the Order Process may contain additional terms and conditions and information regarding the Services you are ordering. Unless otherwise expressly set forth in any such additional terms and conditions applicable to the specific Service which You choose to use, those additional terms are hereby incorporated into this Agreement in relation to Your use of that Service.

System Requirements. Use of the Services requires one or more compatible devices, Internet access (fees may apply), and certain software (fees may apply), and may require obtaining updates or upgrades from time to time. Because the use of the Services involves hardware, software, and Internet access, Your ability to access and use the Services may be affected by the performance of these factors. High-speed broadband Internet (as opposed to a cellular network) access is recommended. You acknowledge and agree that such system requirements, which may be changed from time to time, are Your responsibility.

  1. DEFINITIONS. See definitions in Attachment A, below.

  1. TERM OF THIS AGREEMENT. The Term of this Agreement will commence on the Service Effective Date and continue until the expiry date, or terminated earlier by the Customer for any reason, or by TARKiiZ due to a breach of any of the Terms of this Agreement.
  2. SERVICES. TARKiiZ will provide the Services as described in the Order Process, and standard updates to the Services that are made generally available by TARKiiZ during the term. TARKiiZ may, in its sole discretion, discontinue the Services or modify the features of the Services from time to time without prior notice.
  1. Beta Services. TARKiiZ may, from time to time, offer access to services that are classified as Beta versions. Access to and use of Beta versions may be subject to additional agreements. TARKiiZ makes no representations that a Beta version will ever be made generally available and reserves the right to discontinue or modify a Beta version at any time without notice. Beta versions are provided AS-IS, may contain bugs, errors or other defects, and Your use of a Beta version is at Your sole risk.

  1. USE OF SERVICES AND YOUR RESPONSIBILITIES. You may only use the Services pursuant to the terms of this Agreement. You are solely responsible for Your and Your End Users’ use of the Services and shall abide by, and ensure compliance with, all Laws in connection with Your and each End User’s use of the Services, including but not limited to laws related to recording, intellectual property, privacy and export control. Use of the Services is void where prohibited.
  1. Registration Information. You may be required to provide information about Yourself in order to register for and/or use certain Services. You agree that any such information shall be accurate. You may also be asked to choose a username and password. You are entirely responsible for maintaining the security of Your user name and password and agree not to disclose such to any third party.
  2. Your Content. You agree that You are solely responsible for the content (“Content”) sent or transmitted by You or displayed or uploaded by You in using the Services and for compliance with all Laws pertaining to the Content, including, but not limited to, laws requiring You to obtain the consent of a third party to use the Content and to provide appropriate notices of third party rights. You represent and warrant that You have the right to upload the Content to TARKiiZ and that such use does not violate or infringe on any rights of any third party. Under no circumstances will TARKiiZ be liable in any way for any (a) Content that is transmitted or viewed while using the Services, (b) errors or omissions in the Content, or (c) any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to Content. Although TARKiiZ is not responsible for any Content, TARKiiZ may delete any Content, at any time without notice to You, if TARKiiZ becomes aware that it violates any provision of this Agreement or any law. You retain copyright and any other rights You already hold in Content which You submit, post or display on or through, the Services.
  3. Recordings. You are responsible for compliance with all recording laws.  Anyone, Host or Participant, can choose to record TARKiiZ Meetings and TARKiiZ Webinars. TARKiiZ will not store any recordings in our systems after the end of a Meeting or Webinar.  Should a recording be required, each Host and/or Participant is required to record and download the recording before leaving the Meeting or Webinar. You will receive a notification (visual or otherwise) when recording is enabled. If you do not consent to be recorded, you can choose to either choose the “Stop my video” menu, “Stop my camera” menu, or leave the meeting or webinar.
  4. Prohibited Use. You agree that You will not use, and will not permit any End User to use, the Services to: (i) modify, disassemble, decompile, prepare derivative works of, reverse engineer or otherwise attempt to gain access to the source code of the Services; (ii) knowingly or negligently use the Services in a way that abuses, interferes with, or disrupts TARKiiZ’s networks, Your accounts, or the Services; (iii) engage in activity that is illegal, fraudulent, false, or misleading, (iv) transmit through the Services any material that may infringe the intellectual property or other rights of third parties; (v) build or benchmark a competitive product or service, or copy any features, functions or graphics of the Services; or (vi) use the Services to communicate any message or material that is harassing, libelous, threatening, obscene, indecent, would violate the intellectual property rights of any party or is otherwise unlawful, that would give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law or regulation; (vii) upload or transmit any software, Content or code that does or is intended to harm, disable, destroy or adversely affect performance of the Services in any way or which does or is intended to harm or extract information or data from other hardware, software or networks of TARKiiZ or other users of Services; (viii) engage in any activity or use the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with or disrupt the Services, or any servers or networks connected to the Services or TARKiiZ’s security systems. (ix) use the Services in violation of any TARKiiZ policy or in a manner that violates applicable law, including but not limited to anti-spam, export control, privacy, and anti-terrorism laws and regulations and laws requiring the consent of subjects of audio and video recordings and You agree that You are solely responsible for compliance with all such laws and regulations.
  5. Limitations on Use. You may not reproduce, resell, or distribute the Services or any reports or data generated by the Services for any purpose unless You have been specifically permitted to do so under a separate agreement with TARKiiZ. You may not offer or enable any third parties to use the Services purchased by You, display on any website or otherwise publish the Services or any Content obtained from a Service (other than Content created by You) or otherwise generate income from the Services or use the Services for the development, production or marketing of a service or product substantially similar to the Services.

  1. RESPONSIBILITY FOR END USERS. You are responsible for the activities of all End Users who access or use the Services through your account and you agree to ensure that any such End User will comply with the terms of this Agreement and any TARKiiZ policies. TARKiiZ assumes no responsibility or liability for violations. If You become aware of any violation of this Agreement in connection with the use of the Services by any person, please contact TARKiiZ. TARKiiZ may investigate any complaints and violations that come to its attention and may take any (or no) action that it believes is appropriate, including, but not limited to issuing warnings, removing the content or terminating accounts and/or User profiles. Under no circumstances will TARKiiZ be liable in any way for any data or other content viewed while using the Services, including, but not limited to, any errors or omissions in any such data or content, or any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to any data or content.

  1. TARKiiZ OBLIGATIONS FOR CONTENT. TARKiiZ will maintain reasonable physical and technical safeguards to prevent unauthorized disclosure of or access to Content, in accordance with industry standards. TARKiiZ will notify You if it becomes aware of unauthorized access to Content. TARKiiZ will not access, view or process Content except (a) as provided for in this Agreement and in TARKiiZ’s Privacy Statement; (b) as authorized or instructed by You, and (c) as required to perform its obligations under this Agreement; or (d) as required by Law. TARKiiZ has no other obligations with respect to Content.

  1. ELIGIBILITY. You affirm that You are at least 16 years of age and are otherwise fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement. Your access may be terminated without warning if we believe that You are under the age of 16 or are otherwise ineligible.

  1. INTENDED USE. The Services are intended for business. You may choose to use the Services for other purposes, subject to the terms and limitations of this Agreement. TARKiiZ is not intended for use by individuals under the age of 16 unless it is through a School Subscriber using TARKiiZ for Education (K-12).

  1. CHARGES AND CANCELLATIONS. You agree that TARKiiZ may charge to Your credit card or other payment mechanism selected by You and approved by TARKiiZ (“Your Account”) all amounts due and owing for the Services. All payments made by You to Us under this Agreement will be made free and clear of any deduction or withholding, as may be required by law. If any such deduction or withholding (including but not limited to domestic or cross-border withholding taxes) is required on any payment, you will pay such additional amounts as are necessary so that the net amount received by Us is equal to the amount then due and payable under this Agreement. We will provide you with such tax forms as are reasonably requested in order to reduce or eliminate the amount of any withholding or deduction for taxes in respect of payments made under this Agreement. TARKiiZ may change prices at any time, including changing from a free service to a paid service and charging for services that were previously offered free of charge; provided, however, that TARKiiZ will provide you with prior notice and an opportunity to terminate Your Account if TARKiiZ changes the price of a Service to which you are subscribed and will not charge you for a previously free Service unless you have been notified of the applicable fees and agreed to pay such fees. You agree that in the event TARKiiZ is unable to collect the fees owed to TARKiiZ for the Services through Your Account, TARKiiZ may take any other steps it deems necessary to collect such fees from You and that You will be responsible for all costs and expenses incurred by TARKiiZ in connection with such collection activity, including collection fees, court costs and attorneys’ fees. You may cancel your subscription at any time. If you cancel, you will not be billed for any additional terms of service, and service will continue until the end of the current Subscription Term. If you cancel, you will not receive a refund for any service already paid for.

  1. TAXES. Unless stated otherwise, all prices and fees shown by TARKiiZ are exclusive of Taxes and regulatory fees, service, service fees, set up fees, subscription fees, or any other fee or charge associated with Your Account. Where applicable, Taxes and regulatory fees will be charged on the invoices issued by TARKiiZ in accordance with local laws and regulations. TARKiiZ, in its sole discretion, will calculate the amount of taxes due. The taxes and regulatory fees charged can be changed without notice.
  1. VAT Invoices. If required by Law, TARKiiZ will issue a VAT invoice or a document that the relevant taxing authority will treat as a VAT invoice, to You. You accept that this invoice may be issued electronically.
  2. Tax exemptions. If You are exempt from any Tax or Fee, You will provide TARKiiZ with all appropriate tax exemption certificates, and/or other documentation satisfactory to the applicable taxing authorities to substantiate such exemption status. TARKiiZ reserves the right to review and validate tax exemption documentation. In the event that the tax exemption documentation is not valid, TARKiiZ reserves the right to charge applicable taxes to You.
  3. Payment of Taxes and Fees. You will pay to TARKiiZ any applicable Taxes and Fees. You are solely responsible for paying any and all Taxes and Fees owing as a result of TARKiiZ’s provision of the Services to You. If You are required to pay any Taxes and Fees, You shall pay such amounts with no reduction or offset in amounts payable to TARKiiZ hereunder and You will pay and bear such additional amount, as shall be necessary such that TARKiiZ receives the full amount of payment required as if no such reduction or offset were required.
  4. VAT is due by the customer. In the event Taxes and Fees are due towards the taxing authorities by You instead of TARKiiZ, through the reverse charge or other similar mechanisms, You will provide TARKiiZ with all appropriate evidence for TARKiiZ to demonstrate Your business nature, such as a valid VAT registration number (or similar information required under the relevant VAT laws). TARKiiZ reserves the right to review and validate your VAT registration number. In the event that the VAT registration number is not valid, TARKiiZ reserves the right to nevertheless charge applicable VAT to You. For the avoidance of doubt, if VAT is due by You to a taxing authority, through the reverse charge or other similar mechanisms, You are solely responsible for paying those amounts to the relevant taxing authority such that TARKiiZ receives the full amount of payment required.
  5. Tax determination. Tax determination is principally based on the location where the Customer has established its business based on the Customer Data, or for individuals where that individual permanently resides. This will be defined by TARKiiZ as Your ‘Sold To’ address. TARKiiZ reserves the right to cross-reference this location against other available evidence to validate whether Your location is accurate. In the event that Your location is inaccurate, TARKiiZ reserves the right to charge You any outstanding Taxes and Fees.
  6. Use and enjoyment. If You purchase TARKiiZ Services, and those Services are used and enjoyed by a subsidiary of You in a country that is different from Your location as determined by Section 10(e) of this TOS, You confirm that where required You will treat this as a supply to Your subsidiary. In the event You purchase Services and those Services are used and enjoyed by a branch or individual in a country that is different from Your location as determined by Section 10(e) of this TOS, You acknowledge that You will inform TARKiiZ of the Services that have been allocated and You acknowledge that TARKiiZ reserves the right to charge Taxes and Fees based on the use and enjoyment of those Services.

  1. TERMINATION. The TARKiiZ website - https://tarkiiz.com - contains information on how to terminate Your Account. If you have purchased a Plan for a specific term, such termination will be effective on the last day of the then-current term. Your Renewal Term will begin automatically unless either party provides notice of termination at least thirty (30) days prior to the commencement of the next Renewal Term. If You fail to comply with any provision of this Agreement, TARKiiZ may terminate this Agreement immediately and retain any fees previously paid by You. Sections 2 through 23, inclusive, shall survive any termination of this Agreement. Upon any termination of this Agreement, You must cease any further use of the Services. If at any time You are not happy with the Services, Your sole remedy is to cease using the Services and follow this termination process.

  1. CONFIDENTIALITY. Each party agrees to regard and preserve as confidential all non-public information provided by the other party relating to the business, systems, operations, strategic plans, clients, pricing (including, but not limited to, the pricing terms herein), methods, processes, financial data, programs, and/or products of the other party in any form, that are designated as “confidential,” or a reasonable person knows or reasonably should understand to be confidential (herein “Confidential Information”). For purposes of the Agreement, Your Confidential Information shall include Your Data, and any information disclosed to TARKiiZ by You relating to the business, systems, operations, strategic plans, clients, pricing, methods, processes, financial data, programs, and/or products of Yours. Each party agrees to limit its disclosure of the other party’s Confidential Information to as few persons as possible and only to those persons with a need to know that is its or its Affiliates’ personnel and subject to an obligation to keep such information confidential. Except as needed to fulfill their respective obligations under the Agreement, neither party shall, without first obtaining the other party’s prior written consent, disclose to any person, firm or enterprise, except as expressly permitted herein, or use for its own benefit, or the benefit of a third party, the Confidential Information of the other party.
  1. Exclusions. “Confidential Information” shall not include Content or information that (a) is already rightfully known to a party at the time it is obtained from the other party, free from any obligation to keep such information confidential; (b) is or becomes publicly known or available through no wrongful act of a party; (c) is rightfully received from a third party without restriction and without breach of this TOS; or (d) is developed by a party without the use of any proprietary, non-public information provided by the other party under the Agreement.
  2. Exception. Either party may disclose Confidential Information where required by law, regulation, or court order, provided that the party subject to such law, regulation or court order shall, where permitted, notify the other party of any such use or requirement prior to disclosure in order to afford such other party an opportunity to seek a protective order to prevent or limit disclosure of the information to third parties.
  3. Confidentiality Period and Obligations. The confidentiality obligations set forth in this section of the TOS shall remain in effect for a period of five (5) years from the disclosure of the information. Both parties agree (a) to take reasonable steps to protect the other party’s Confidential Information, and these steps must be at least as protective as those the receiving party takes to protect its own Confidential Information, and no less than a reasonable standard of care; (b) to notify the disclosing party promptly upon discovery of any unauthorized use or disclosure of Confidential Information; and (c) in the event of any unauthorized disclosure by a receiving party, to cooperate with the disclosing party to help regain control of the Confidential Information and prevent further unauthorized use or disclosure of it.

  1. PROPRIETARY RIGHTS. TARKiiZ and/or its suppliers, as applicable, retain ownership of all proprietary rights in the Services and in all trade names, trademarks, service marks, logos, and domain names (“TARKiiZ Marks”) associated or displayed with the Services. You may not frame or utilize framing techniques to enclose any TARKiiZ Marks or other proprietary information (including images, text, page layout, or form) of TARKiiZ without express written consent. You may not use any meta tags or any other “hidden text” utilizing TARKiiZ Marks without TARKiiZ’s express written consent.

  1. COPYRIGHT. You may not post, modify, distribute, or reproduce in any way copyrighted material, trademarks, rights of publicity or other proprietary rights without obtaining the prior written consent of the owner of such proprietary rights. TARKiiZ may deny access to the Services to any User who is alleged to infringe another party’s copyright. Without limiting the foregoing, if You believe that Your copyright has been infringed, please notify TARKiiZ here. Please list the copyrighted work or trademark that you claim is being infringed upon; tell us how you think this page/event infringes your copyright or trademark; tell us the name of who you claim the IP owner is, and your/their contact details; upload a screenshot of what you claim it the copyright or trademark infringement.  
  2. INTELLECTUAL PROPERTY (IP)

A. Limited License

B. IP Rights

C. Use of Marks

Neither Party may use or display the other Party’s trademarks, service marks or logos in any manner without such Party’s prior written consent.

  1. DATA PROTECTION

A. Data Privacy

TARKiiZ respects Customer’s privacy and will only use the information provided by Customer to TARKiiZ or collected in the provision of the Services in accordance with Our Privacy Policy, which is hereby incorporated by reference. TARKiiZ may update the TARKiiZ Privacy Policy from time to time and will provide notice of any material updates to the Customer as required by applicable Laws at the email address on file with the Account. Such updates will be effective thirty (30) days after such notice to the Customer.

B. Data Security

TARKiiZ will take commercially reasonable precautions, including, without limitation, technical (e.g., firewalls and data encryption), administrative and physical measures, to help safeguard the Customer’s Account, Account Data, and Customer Content against unauthorized use, disclosure, or modification.

Customers must protect all End Points using industry-standard security measures. The customer is solely responsible to keep all user identifications and passwords secure. Customers must monitor the use of the Services for possible unlawful or fraudulent use. The Customer must notify TARKiiZ immediately if the Customer becomes aware or has reason to believe that the Services are being used fraudulently or without authorization by any End User or third party. Failure to notify TARKiiZ may result in the suspension or termination of the Services and additional charges to the Customer resulting from such use. TARKiiZ will not be liable for any charges resulting from unauthorized use of the Customer’s Account.

C. Software Changes

TARKiiZ may from time to time push software updates and patches directly to the Customer’s device(s) for installation and the Customer will not prevent TARKiiZ from doing so. Customers must implement promptly all fixes, updates, upgrades and replacements of software and third-party software that may be provided by TARKiiZ. TARKiiZ will not be liable for the inoperability of the Services or any other Services failures due to the failure of the Customer to timely implement the required changes.

  1. NO HIGH-RISK USE. The Services are not designed or licensed for use in hazardous environments requiring fail-safe controls, including without limitation operation of nuclear facilities, aircraft navigation/communication systems, air traffic control, and life support or weapons systems. The Services shall not be used for or in any HIGH-RISK environment.

  1. INJUNCTIVE RELIEF. You acknowledge that any use of the Services contrary to this Agreement, or any transfer, sublicensing, copying or disclosure of technical information or materials related to the Services, may cause irreparable injury to TARKiiZ, its Affiliates, suppliers and any other party authorized by TARKiiZ to resell, distribute, or promote the Services (“Resellers”), and under such circumstances TARKiiZ, its Affiliates, suppliers and Resellers will be entitled to equitable relief, without posting a bond or other security, including, but not limited to, preliminary and permanent injunctive relief.

  1. NO WARRANTIES. YOU UNDERSTAND AND AGREE THAT THE SERVICES ARE PROVIDED “AS IS” AND TARKiiZ, ITS AFFILIATES, SUPPLIERS AND RESELLERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. TARKiiZ, ITS AFFILIATES, SUPPLIERS AND RESELLERS MAKE NO WARRANTY OR REPRESENTATION REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES, REGARDING THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES OR THAT THE SERVICES WILL MEET ANY USER’S REQUIREMENTS, OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE. USE OF THE SERVICES IS AT YOUR SOLE RISK. ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOU RESULTING FROM THE USE OF THE SERVICES. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SERVICES REMAINS WITH YOU. TARKiiZ DOES NOT ASSUME ANY RESPONSIBILITY FOR RETENTION OF ANY USER INFORMATION OR COMMUNICATIONS BETWEEN USERS. TARKiiZ CAN NOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE SERVICES. USE IS AT YOUR OWN RISK.

  1. INDEMNIFICATION. 

A. You agree to indemnify, defend, hold harmless and defend TARKiiZ, its affiliates, officers, directors, employees, consultants, agents, suppliers and Resellers from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys’ fees) arising out of or in connection with: i) material violation of applicable Law by the Customer or its End Users in connection with the use of the Services; ii) use of the Services in a manner not authorized by this Agreement; iii) failure to promptly install any updates of any software or firmware or accept or use modified or replacement items provided by or on behalf of TARKiiZ, or iv) claims relating to Customer Content; v) your violation of any intellectual property or another right of any person or entity or applicable law. Further, the Customer will indemnify and hold harmless TARKiiZ against all damages, costs, and legal fees finally awarded against TARKiiZ by a court of competent jurisdiction in connection with such third-party claim or agreed to in a written settlement agreement approved in writing by the Customer.

B. Defense and Indemnification Procedures

Any Party seeking defense or indemnification (the “Indemnified Party”) must provide the Party from which it seeks such indemnification or defense (the “Indemnifying Party”) with the following: (a) prompt written notice of the third-party claim, (b) sole control over the defense and settlement of the third-party claim, and (c) reasonable information, cooperation, and assistance in connection with the defense and settlement of the third-party claim. The Indemnifying Party’s failure to comply with the foregoing obligations will not relieve the Indemnifying Party of its defense or indemnification obligations under this Section (Indemnification), except to the extent that the Indemnifying Party is prejudiced by such a failure. The Indemnified Party will have the right to participate at its own expense in the defense of such third-party claim, including any related settlement negotiations. No such claim may be settled or compromised by the Indemnifying Party without the Indemnified Party’s express written consent (and such consent may not be unreasonably withheld, conditioned, or delayed), unless such settlement or compromise includes a full and complete release of all claims and actions against the Indemnified Party by each party bringing such third-party claim.

LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL TARKiiZ OR ITS AFFILIATES, SUPPLIERS OR RESELLERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS OR DAMAGE) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES OR THE PROVISION OF OR FAILURE TO PROVIDE TECHNICAL OR OTHER SUPPORT SERVICES, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF TARKiiZ, ITS AFFILIATES, SUPPLIERS OR RESELLERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, TARKiiZ’S, ITS AFFILIATES’, SUPPLIERS’ AND RESELLERS’ MAXIMUM CUMULATIVE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SERVICES (IF ANY) IN THE TWELVE (12) MONTHS PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH CLAIMS.

  1. AGREEMENT TO ARBITRATE; WAIVER OF CLASS ACTION. If You are located in the United States, You agree to resolve disputes only on an individual basis, through arbitration pursuant to the provisions of Exhibit A. The parties expressly waive any right to bring any action, lawsuit, or proceeding as a class or collective action, private attorney general action, or any other proceeding in which any party acts or proposes to act in a representative capacity.

  1. PRIVACY AND OTHER POLICIES. Use of the Services is also subject to TARKiiZ’s Privacy Statement, a link to which can be found by selecting “Privacy Policy” in the footer of TARKiiZ’s website: https://tarkiiz.com. The Privacy Statement and all policies noticed at TARKiiZ’s website are incorporated into this Agreement by this reference. Furthermore, if Your Use of the Services requires TARKiiZ to process any personally identifiable information (“PII” or “Personal Data”) TARKiiZ shall do so at all times in compliance with our Privacy Policy. Additionally, You understand and agree that TARKiiZ may contact You via e-mail or otherwise with information relevant to Your use of the Services, regardless of whether You have opted out of receiving marketing communications or notices.

  1. MISCELLANEOUS
  1. Choice of Law and Forum. This Agreement shall be governed by and construed under the laws of the province of Ontario, Canada, as applied to agreements entered into and to be performed in Ontario by Ontario residents, except as provided in Exhibit A.
  2. Relationship of the Parties. TARKiiZ and Customer are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between TARKiiZ and Customer.
  3. Assignment. Neither Party may assign the Agreement or any portion thereof without the other Party’s prior written consent (and such consent may not be unreasonably withheld or delayed), however, either Party may assign the Agreement and all of that Party’s rights and obligations hereunder without consent (a) to an Affiliate; (b) to the Party’s successor or surviving entity in connection with a merger, acquisition, consolidation, sale of all or substantially all of its assets used in connection with the provision of Services under this Agreement; or (c) as part of the transfer or disposition of more than fifty percent (50%) of a Party’s voting control or assets. This Agreement will bind and inure to the benefit of the Parties, and their permitted assigns and successors.
  4. Waiver and Severability. In the event any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, such provision(s) will be stricken and the remainder of this Agreement will remain legal, valid and binding. The failure by either Party to exercise or enforce any right conferred by this Agreement will not be deemed to be a waiver of any such right or to operate so as to bar the exercise or enforcement of any such or other rights on any later occasion. Except as otherwise expressly stated in this Agreement, all rights and remedies stated in the Agreement are cumulative and in addition to any other rights and remedies available under the Agreement, at Law, or in equity.
  5. General Provisions. This Agreement embodies the entire understanding and agreement between the Parties respecting the subject matter of this Agreement and supersedes any and all prior understandings and agreements between the parties respecting such subject matter, except that if You or Your company have executed a separate written agreement or You have signed an order form referencing a separate agreement governing Your use of the Services, then such agreement shall control to the extent that any provision of this Agreement conflicts with the terms of such agreement. TARKiiZ may elect to change or supplement the terms of this Agreement from time to time at its sole discretion. TARKiiZ will exercise commercially reasonable business efforts to provide notice to You of any material changes to this Agreement. Within thirty (30) business days of posting changes to this Agreement (or thirty (30) business days from the date of the notice, if such is provided), they will be binding on You. If You do not agree with the changes, You should discontinue using the Services. If You continue using the Services after such a thirty-business-day period, You will be deemed to have accepted the changes to the terms of this Agreement. In order to participate in certain Services, You may be notified that You are required to download software and/or agree to additional terms and conditions. Unless expressly set forth in such additional terms and conditions, those additional terms are hereby incorporated into this Agreement. This Agreement has been prepared in the English Language and such version shall be controlled in all respects and any non-English version of this Agreement is solely for accommodation purposes.
  6. Notices. Except where otherwise expressly stated in the Agreement, all notices or other communications must be in English and are deemed to have been fully given when made in writing and delivered in person, upon delivered email, or five business days after deposit with a reputable overnight courier service, and addressed as follows:

To: TARKiiZ Communications, Inc.,

117 Tulane Crescent, North York, Ontario

M3A 2C2, Canada,

with a copy to legal@tarkiiz.com, and to the Customer at either the physical address or email address associated with the Customer Account. The customer acknowledges and agrees that all electronic notices have the full force and effect of paper notices.

The addresses to which notices may be given by either Party may be changed upon written notice given to the other Party pursuant to this Section 23(f) (Notices) or by Customer in the Contact Us section of TARKiiZ’s website.

  1. Force Majeure. Excluding either Party’s payment obligations under the Agreement, neither Party will be responsible or liable for any failure to perform or delay in performing to the extent resulting from a Force Majeure Event. The suspension of obligations under this Section 23(g) (Force Majeure) may under no circumstances be a cause of liability for failure to perform the obligation in question, nor induce the payment of damages or penalties for late payment.
  2. Third-Party Beneficiaries. TARKiiZ and Customer agree that there will be no third-party beneficiaries to this Agreement.
  3. Internal Customer Activities. TARKiiZ does not have any obligation to assist in or otherwise mediate in the event of any dispute between Customer representatives or Customers and any third party with respect to ownership or control of any Account or Account Data. All information within TARKiiZ’s records regarding the ownership or control of an Account or Account Data, Services ordered, and numbers assigned to an Account will be definitive and controlling for purposes of administering the Account. In the event of any such dispute, TARKiiZ may take any course of action that it deems appropriate based on the information available, which include declining to take any course of action.

TARKiiZ may access your Account and related data as required to provide the Services. However, TARKiiZ has no obligation to access your Account, Account Data or any Customer Content for any other purposes, unless required by law. Services do not include or consist of any investigation, review, verification, production, compilation, modification, or other similar services for any Account Data or Customer Content. Services do not include the provision of any legal, accounting, or other professional services.

  1. Headings, Interpretation. The headings, section titles, and captions used in the Agreement are for convenience of reference only and will have no legal effect. All defined terms include related grammatical forms, and, whenever the context may require, the singular form of nouns and pronouns include the plural, and vice versa.
  2. Anti-Bribery. Each Party represents that in the execution of this Agreement and in the performance of its obligations under this Agreement it has complied and will comply with all applicable anti-bribery laws and regulations, including, without limitation, the Canadian Corruption of Foreign Public Officials Act (CFPOA), the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act, and similar applicable Laws.
  3. Export Control. Any services, products, software, and technical information (including, but not limited to, services and training) provided pursuant to the Agreement may be subject to Canadian export laws and regulations. Customer will not use, distribute, transfer, or transmit the Services (even if incorporated into other products) except in compliance with Canadian and other applicable export regulations.
  4. Regulatory and Legal Changes. In the event of any change in law, regulation or industry change that would prohibit or otherwise materially interfere with TARKiiZ’s ability to provide Services under this Agreement, TARKiiZ may terminate the affected Services or this Agreement or otherwise modify the terms thereof.
  5. Entire Agreement. The Agreement, together with any Exhibits, Orders, or Attachments, each of which is expressly incorporated into this Agreement with this reference, constitutes the entire agreement between the Parties and supersedes and replaces any and all prior or contemporaneous understandings, proposals, representations, marketing materials, statements, or agreements, whether oral, written, or otherwise, regarding such subject.
  6. Order of Precedence. In the event of any conflict between the documents comprising this Agreement, precedence will be given to the documents in the following descending order: (i) the applicable Order Process; (ii) the applicable Service Attachments; (iii) the main body of this Agreement; (iv) Use Policies and Privacy Policy; and (v) and any other document expressly referred to in this Agreement which governs the Services. However, with respect to data processing, the Privacy Policy shall take precedence over any inconsistent terms in any of the documents listed in the previous sentence.
  7. Amendments. TARKiiZ may update this Agreement or any of its Use Policies and Data Privacy Policies from time to time and will provide notice to the Customer at the email address on file with the Account. Such updates will become effective thirty (30) days after such notice to the Customer. In the event that any such update would be of material detriment to Customer and is not required by Law, Customer must inform TARKiiZ of its objection within ten (10) days of receiving the notice provided under this provision. If the Parties, negotiating in good faith cannot reach an agreement within thirty (30) days, either Party may terminate the portion of the Services affected by the change, without penalty, by written notice to the other Party. Any use of the Services after the effective date will be deemed Customer’s acceptance of the change.
  8. Publicity. Notwithstanding anything to the contrary in this Agreement, TARKiiZ may identify Customer as a customer (including the use of any Customer logo or trademark) and may refer to this Agreement during its earnings calls and in connection with its business deals, press releases, and marketing and/or promotional materials.
  9. Execution. Each Party represents and warrants that: (a) it possesses the legal right and capacity to enter into the Agreement and to perform all of its obligations thereunder; (b) the individual executing an Electronic Signature regarding the Agreement on that Party’s behalf has full power and authority to execute and deliver the same; and (c) the Agreement will be a binding obligation of that Party.
  10. Electronic Signature and Counterparts. This Agreement may be executed electronically and in separate counterparts, each of which when taken together will constitute one in the same original. Each Party agrees that an Electronic Signature, whether digital or encrypted, is intended to authenticate this Agreement and to have the same force and effect as manual signatures.
  11. Survival. The rights and obligations of either Party that by their nature would continue beyond the expiration or termination of this Agreement or an Order will survive expiration or termination of this Agreement or the Order, including without limitation payment obligations, warranty disclaimers, indemnities, limitations of liability, and definitions and miscellaneous.

Exhibit A: Binding Arbitration

This Exhibit A to the TOS describes the further provisions which apply to the Binding Arbitration and Class Action Waiver.

  1. Disputes. A dispute is any controversy between You and TARKiiZ concerning the Services, any software related to the Services, the price of the Services, Your account, TARKiiZ’s advertising, marketing, or communications, Your purchase transaction or billing, or any term of this Agreement, under any legal theory including contract, warranty, tort, statute, or regulation, except disputes relating to the enforcement or validity of Your or TARKiiZ’s intellectual property rights. As part of the best efforts process to resolve disputes, and prior to initiating arbitration proceedings, each party agrees to provide notice of the dispute to the other party, including a description of the dispute, what efforts have been made to resolve it, and what the disputing party is requesting as resolution. Notice of the dispute should be sent to TARKiiZ via legal@tarkiiz.com.

  1. Small Claims Court Available. You may initiate an action in Your local Small Claims Court if You meet the court’s requirements. However, if such a claim is transferred, removed or appealed to a different court, TARKiiZ reserves the right to require arbitration.

  1. Arbitration Procedure. Disputes not resolved pursuant to Section A or B shall be resolved through arbitration. Canadian Arbitration Association (“CAA”) will conduct any arbitration under its Commercial Arbitration Rules. For more information, see

 https://canadianarbitrationassociation.ca/. Arbitration hearings will take place in Ontario, Canada. A single arbitrator will be appointed. The arbitrator must: (a) follow all applicable substantive law; (b) follow applicable statutes of limitations; (c) honor valid claims of privilege; (d) issue a written decision including the reasons for the award. The arbitrator may award damages, declaratory or injunctive relief, and costs (including reasonable attorneys’ fees). Any arbitration award may be enforced (such as through a judgment) in any court with jurisdiction. Under CAA Rules, the arbitrator rules on his or her own jurisdiction, including the arbitrability of any claim; however, a court has exclusive authority to enforce the prohibition on arbitration on a class-wide basis or in a representative capacity.

  1. Arbitration Fees. If You are unable to afford the arbitration costs, TARKiiZ will advance those costs to You, subject to the arbitrator’s determination if costs should be reimbursed to TARKiiZ if TARKiiZ prevails. For disputes involving more than $75,000 Canadian Dollars, the CAA rules will govern the payment of filing fees and the CAA’s and arbitrator’s fees and expenses.

  1. Conflict with CAA Rules. This Agreement governs if there is a conflict with the Commercial Arbitration Rules.

  1. Requirement to File Within One Year. Notwithstanding any other statute of limitations, a claim or dispute under this Agreement must be filed in Small Claims Court or noticed for arbitration within one year of when it could first be filed, or such a claim will be permanently barred.

  1. Severability. If the class action waiver is found to be illegal or unenforceable as to all or some parts of a dispute, then those parts will not be arbitrated but will be resolved in court, with the balance resolved through arbitration. If any provision of this Exhibit A is found to be illegal or unenforceable, then that provision will be severed; however, the remaining provisions shall still apply and shall be interpreted to, as nearly as possible, achieve the original intent of this Exhibit, inclusive of the severed provision.

Attachment A - Definitions

Definitions. The following definitions will apply in this Agreement, and any reference to the singular includes a reference to the plural and vice versa.

  1. “Account” means the numbered account established with TARKiiZ and associated with Customer and the Services provided to Customer under this Agreement. For billing and convenience purposes, a single Customer may have multiple billing accounts encompassing different geographic locations, business units, or other designations as requested by Customer and accepted by TARKiiZ.
  2. “Account Administrator” means the person(s) who have been granted authority by the Customer to set up, amend, or otherwise control settings and/or make additional purchases for the Account via the Administrative Portal. Account Administrators may have varying levels of Account rights, skills, or permissions.
  3. “Account Data” means any business contact information provided with the Account; configuration data; and records of any Services purchased under this Agreement.
  4. “Administrative Fees” means any administrative recovery fees, 911 cost recovery fees and the like, separately charged by TARKiiZ to the Customer.
  5. “Administrative Portal” means the online administrative portal through which Account Administrators control settings and/or make additional purchases for the Account.
  6. “Affiliate” means, with respect to a Party, any entity that directly or indirectly controls, is controlled by or is under common control with that Party. For purposes of this Agreement, “control” means an economic or voting interest of at least fifty percent (50%) or, in the absence of such economic or voting interest, the power to direct or cause the direction of the management and set the policies of such entity.
  7. “Confidential Information” means any information disclosed by or on behalf of the Disclosing Party to the Receiving Party that should reasonably be considered as confidential given the nature of the information and the circumstances surrounding its disclosure.
  8. “Customer Content” means the content of calls, facsimiles, SMS messages, voicemails, voice recordings, shared files, conferences or other communications transmitted or stored through the Services.
  9. “Disclosing Party” means the Party disclosing Confidential Information or on whose behalf Confidential Information is disclosed by such Party’s agents, including but not limited to, its Affiliates, officers, directors, employees and attorneys.
  10. “Dispute” has the meaning set forth in Exhibit A.
  11. “Effective Date” means the date of execution of the initial Order.
  12. “Electronic Signature” means an electronic sound, symbol, or process, including clicking a digital button to accept, attached to or logically associated with a contract or or Order Process, and executed or adopted by a person with the intent to accept terms or policies.
  13. “End Point” means an application or device through which any End-User might access and/or use any of the Services, including without limitation IP Desk Phones, Desktop Clients, Web Clients, Mobile Applications, and Software Integrations.
  14. “End User” means a Host or Participant.
  15. “Force Majeure Event” means any event or circumstance that are beyond that Party’s control, which are considered without limitation as force majeure: any act of God; national emergency; third-party telecommunications networks; riot; war; terrorism; governmental act or direction; change in Laws; fiber, cable, or wire cut; Sub-processor failure; power outage or reduction; rebellion; revolution; insurrection; earthquake; storm; hurricane; flood, fire, or other natural disasters; strike or labour disturbance; or other cause, whether similar or dissimilar to the foregoing, not resulting from the actions or inactions of such Party.
  16. “Helpdesk” means first-tier support provided to Customers by TARKiiZ.
  17. “Host” means an individual who is an identified employee, contractor, or agent of Customer to whom Customer assigns the right to host Meetings.  The number of Participants a Host may host concurrently shall depend on the type of Plan the Customer purchased.
  18. “Indemnifying Party” and “Indemnified Party” have the meanings set forth in Section 20(B) (Defense and Indemnification Procedures).
  19. “Initial Term” and “Initial Subscription Term” means the initial period for a Service, as specified by an Order Process, that is provided by TARKiiZ to Customer.
  20. “Intellectual Property Rights” or “IP Rights” means all common law and statutory rights (whether registered or unregistered, or recorded or unrecorded, regardless of method) arising out of or associated with: (a) patents and patent applications, inventions, industrial designs, discoveries, business methods, and processes; (b) copyrights and copyright registrations, and “moral” rights; (c) the protection of trade and industrial secrets and Confidential Information; (d) other proprietary rights relating to intangible property; (e) trademarks, trade names and service marks; (f) a person’s name, likeness, voice, photograph or signature, including without limitation rights of personality, privacy, and publicity; (g) analogous rights to those set forth above; and (h) divisions, continuations, continuations-in-part, renewals, re-issuances and extensions of the foregoing (as applicable).
  21. “Law” means any law, statute, regulation, rule, ordinance, administrative guidance, treaty or convention, or court or administrative order or ruling of any governmental body with jurisdiction over the Services.
  22. “Order(s)” or “Order Process(es)” means a request or order for Services describing the type and quantity of Services required by the Customer and submitted and accepted by TARKiiZ in accordance with  Order Processes. The Order may be presented and executed on the TARKiiZ website or via the Administrative Portal.
  23. “Participant” means an individual, other than the Host, who accesses or uses the Services, with or without the permission and knowledge of the Host.
  24. “Plan” means a type of service, for a specific Term, as defined by the Order Process.
  25. “Parties” means TARKiiZ and Customer.
  26. “Receiving Party” means the Party or its agents, including, but not limited to its Affiliates, officers, directors, employees and attorneys receiving Confidential Information.
  27. “Renewal Term” means the renewal subscription term for a Service commencing after the Initial Subscription Term or another Renewal Term.
  28. “School Subscribers” are Customers who, while signing up for the Services, specify that their account is “For Educators” (by clicking a checkbox with this label), i.e. that they “are signing up on behalf of a school or other organization which provides educational services to children under the age of 16.”
  29. “Service(s)” means all services provided under this Agreement and set forth in one or more Order Process(es).
  30. “Service Attachment” means documents appended to the Agreement containing additional terms for Services.
  31. “Start Date” means the date so identified in the relevant Order Process or the date on which the Customer orders Services via the website or the Administrative Portal.
  32. “Service Effective Date” means the date an Initial Subscription Term begins.
  33. “TARKiiZ Customer Care” means TARKiiZ’s Customer support operations, available via the Contact Us section of the TARKiiZ website, and via service@tarkiiz.com.
  34. “TARKiiZ Network” means the network and supporting facilities between and among the TARKiiZ points of presence (“PoP(s)”), up to and including the interconnection point between the TARKiiZ’s network and facilities, and the public Internet, private IP networks, and the Public Switched Telephone Network (PSTN). The TARKiiZ Network does not include the public Internet, a Customer’s own private network, or the PSTN.
  35. “Taxes” means any and all federal, state, local, municipal, foreign and other taxes and fees charged or collected from Customers, including but not limited to any Universal Service Fund, TRS and 911 taxes and fees.“Taxes and Fees” and “Taxes or Fees” means all applicable sales, use, environmental or regulatory taxes, VAT, fees, duties (including customs duties), charges, surcharges or assessments levied on the provision of Services to Customer (exclusive of any income tax imposed on TARKiiZ).
  36. “Term” means the Initial Term plus any Renewal Terms.
  37. “Use Policy” refers to any of the policies found in the footer of the TARKiiZ website.
  38. “VAT” means any value-added tax, and any other tax of a similar nature, whether imposed in a Member State of the European Union in substitution for, or levied in addition to, such tax, or imposed elsewhere, any Goods and Services Tax, PIS/COFINS, any similar indirect Tax or any Tax analogous thereto imposed in connection with or otherwise relating to, the Services rendered by TARKiiZ to Customer.
  39. “Your Data” means the information provided to TARKiiZ so that TARKiiZ can fulfill the terms of the Agreement and provide access to the Services (e.g., company name, billing address, taxpayer ID number, VAT registration number, contact name and information). You are solely responsible for the accuracy of Your Data, and TARKiiZ has no liability whatsoever for errors and omissions in Your Data.