Legal notice of arkena.com

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– Illustrating a personal website

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Any use for advertising or commercial purposes is strictly prohibited.

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Any reproduction, provision, marketing, in any form whatsoever, of plans or sequences is strictly prohibited.

Any use of documents from this website must acknowledge the source thereof.

Any link to this site must be requested in advance.

General Terms and Conditions

Arkena, a Société par Actions Simplifiée, organized and existing under the laws of France, with a capital of 9,666,583.50 euros, having its registered office at 15 rue Cognacq-Jay 75007 Paris – France, registered with the Trade and Companies Registry of Paris under RCS number 402 433 155, represented by Aymeric DE CARDES in his capacity as President, duly authorized for the purposes hereof, hereinafter called “Arkena”, and duly authorized for the purposes hereof, hereinafter called the “Client”, Arkena and the Client also referred to collectively as the “Parties” or individually as a “Party”, have agreed as follows:

1. Affiliate: any entity of which a Party directly owns – or is owned – at least 40% of the social capital, or any entity that one of the Party controls – or is controlled – as defined by article L. 233-3 of the French Commercial Code

Agreement: the present framework agreement and its appendixes describing the services subscribed by the Client which, together, form the contract.

Force Majeure Event includes all events or circumstances of an unforeseeable, unavoidable and external nature, as defined by the French Court of Cassation, and that would prevent one Party or both Parties to execute all or any part of their obligations as defined in the Agreement. It includes strikes, plant closure or other labor conflicts, fortuitous event, acts of Government, or acts of any competent authority or regulatory bodies, natural disasters, satellite or technical breakdowns.

Hardware: all the equipment which belongs to Arkena and provided by Arkena for the Service.

Software: any software property of Arkena or on which Arkena owns all the necessary rights to provide the Service.

2. The purpose of the Agreement is to define the terms and conditions for the provision by Arkena to the Client of the following services: hereinafter called the “Service”.

The Service is detailed in Appendix and can be amended, in the course of the Agreement, by mutual written agreement between the Parties. The Client shall not use the Service for any other purpose than the ones imitatively authorized by the Agreement.

3. In exchange for the provision of the Service, the Client shall pay to Arkena the price described in Appendix and including all taxes for which the provision of the Service is legally liable. Payment shall occur within 30 (thirty) days following the date of issuance of the invoice. Invoices shall be issued by Arkena at the end of each month, unless otherwise agreed by the Parties. No discount is granted for early payment, and the prices attached to the Service at the date of issuance of the invoice shall be increased by any taxes due under the French law.

Invoices shall be sent to the Client at the following address:

The Client VAT identification number is the following:

Payments shall be made in Euros or otherwise required by Arkena, by bank transfer into the following bank account of Arkena:
Bank:  31489
Bank number:  00010
Account Number:  00218701923 47
IBAN:  R76 3148 9000 1000 2187 0192 347
SWIFT (BIC):  BSUIFRPP

Any dispute by the Client regarding an invoice (address, title, price…) must be documented and sent by registered letter with acknowledgement of receipt to Arkena within 30 (thirty) days from the date of invoicing. Failing which, the Customer is deemed to have accepted the invoice, thereby waiving his right to further dispute the invoice and the related amount for the Service.

Failure to pay any invoice, in full or in part, by the due date, shall entail late interest applying from the time the payment is due, being charged on the outstanding amount, by rights and without any formal notice, at a rate of three times the legal interest rate, except when a delay, timely requested by the Client, has been expressly granted by Arkena. Late interest is payable without prejudice to any damages Arkena may claim in respect of the concerned non-payment.

In addition to the penalties for late payment mentioned above, according to article L. 441-6 du Code and article D. 441-5 of French Commercial Code, an automatic right to a fixed allowance of 40 (forty) Euros is due to Arkena for payment recovery fees. If the payment recovery fees actually spent by Arkena are superior to this fixed allowance, Arkena can request that an additional indemnity be paid upon providing a proof of payments.

Failure by the Client to pay either invoice, or corresponding penalties for late payment, or fixed allowances, may also result in the termination of the Agreement by Arkena (or in the termination of the concerned Appendix) in compliance with the terms of article 16.

4. The Service is provided for a fixed period of from the day of signature of the Agreement. This initial period shall be tacitly renewed for successive periods of 1 (one) year, unless terminated in full or in part (the Agreement can be terminated in its totality, or only some Annexes) by one of the Parties by registered letter to the other Party at least 3 (three) months before the end of the concerned period. The termination letter shall specifically indicate if the termination is full or partial, and in the latter case, specify which Annexe(s) is/are concerned.

5. Arkena holds all necessary rights to the Software to allow the use of the Software by the Client. Arkena grants the Client, for the duration of the Agreement, a personal, non-exclusive, non-transferable right to use the Software, for internal use only and strictly limited to the necessary usage by the Client in order to benefit from the Service. Any other use of the Software by the Client is forbidden. The Client acknowledges that it has no rights to reproduce, communicate to a third party, disclose or make available on any network or the Internet, distribute under any form, sub-license or grant any rights, correct, maintain, adapt, decompile or disassemble or reverse-engineer and more generally modify the Software.

6. Arkena may provide some Hardware on deposit at the Client’s premises in order for the Client to use the Service. The Client shall, for the entire term of the deposit, act as depository and be fully liable for the control, custody, care and use of the Hardware, which is provided on an “as is” basis. The deposit shall run from the delivery of the Hardware to the Client until the termination of this Agreement. Arkena may at its discretion, subject to informing the Client, replace, modify, add to or perform any operation related to the Hardware. Upon termination of the Agreement, the Client shall, at its own cost, return to Arkena within 30 (thirty) days the Hardware in good state and working order except for ordinary tear and wear, or be liable for the reimbursement of the Hardware to Arkena. The same applies if the Hardware is returned to Arkena in a poor condition. The Client shall pay the corresponding invoices in compliance with the terms of article 3.

As depository of the Hardware, the Client agrees to (i) provide appropriate space environment power supply and connections to the Hardware and comply with all technical requirements described in Appendix, (ii) use the Hardware in compliance with the instructions provided by Arkena, and Arkena can replace, modify, complete the Hardware, subject to prior information of the Client, (iii) use the Hardware for the sole purposes of the Service, for its own internal purposes and by its authorized personnel only, to the exclusion of any third party, (iv) insure the Hardware under conditions at least equivalent to those under which it ensures its own equipment, and provide an insurance certificate upon request from Arkena, the Client shall be liable for any theft, degradation or destruction affecting all or part of the Hardware, (v) not lend, rent or sell all or part of the Hardware nor remove any label on the Hardware, nor allow all or part of the Hardware to be subject to any seizure, lien, pledge or other security interest; (vi) not to repair, make repair or otherwise maintain all or part of the Hardware, in any manner whatsoever, by any person other than an authorized representative or agent of Arkena.

The Client shall be liable for any theft, damage or destruction of all or part of the Hardware, after the deposit, unless such damage is not caused by the Client, in which case the Client may request to Arkena, within a maximum of 15 (fifteen) days following the statement of theft, damage or destruction, to replace or repair the Hardware, and Arkena agrees to restore the Hardware to normal working condition or replace it within a reasonable timeframe and bearing the reasonable costs of such repair or replacement.

7. The Client agrees and accepts that all or part of the Hardware and/or Software has an “End of Life” that can be reached during the term of the Agreement, rendering them inoperable by the Client. In such case, Arkena shall not be responsible for any damaging consequences, but Arkena undertakes to inform the Client in a reasonable delay of such eventuality. Arkena also commits to provide its best efforts in order to maintain the Service, and to migrate toward a more suitable Hardware and/or Software.

8. Arkena shall not be held responsible in the eventuality of an important change of software or infrastructure from a third party, disrupting the proper functioning of the Hardware and/or Software, and rendering it/them unable to work, or not able to function in optimal manner. The Client acknowledges that such case is an action of a third party, and that Arkena shall not be liable if this situation occurs during the term of the Agreement. Ultimately, Arkena shall have no obligation whatsoever, of providing further material to the Client, or incurring expenses devoted to optimize the functioning of the Hardware and/or Software.

9. There shall be no transfer of rights or property through the Agreement (especially intellectual or industrial property rights) between the Parties. Arkena shall remain the sole owner of all intellectual property and equipment used for the provision of the Service.

10. The Client undertakes to obtain all the necessary rights and authorizations on the Client’s audiovisual content processed under the Service. The Client warrants and holds Arkena harmless of any demand or action of a third party in relation with said content.

11. The Parties acknowledge the innovative nature of the Service and that they are sufficiently informed of the technical issues that may be encountered. As a consequence, they agree that Arkena shall have a best commercial efforts obligation only in relation to the provision of the Service.

Neither Party shall in any event be liable to the other for any indirect loss, loss of profit, files, data, sales, opportunity or goodwill or any other indirect damages or loss incurred by the other Party.

Arkena will do its best commercial efforts to provide the Service in accordance with generally accepted industry standards. However, Arkena makes no warranty, express or implied, concerning the provision of the Service and its component (including the Hardware and the Software) except as stated in articles 5 and 6.

Arkena’s liability shall be limited to a maximal amount of 100.000 euros (one hundred thousand euros) per claim and per year. The Client hereby waives his right and undertakes to have his insurer waive its right for any claim in excess of this amount.

12. The Client accepts that Arkena may entrust all or part of its obligations under this Agreement to one or more subcontractor(s) of its choosing, Arkena remaining responsible for the Service including the services provided by its subcontractors.

13. Neither Party may transfer or assign its rights or obligations under this Agreement without the prior written consent of the other Party, except when said transfer of assignment is done to the benefit of an Affiliate.

14. Any written communication mentioning a Party shall be previously agreed by the other Party and said approval shall not be unreasonably withheld or delayed. The Client authorizes Arkena to mention the Client, in its internal and external communications, in particular as a commercial reference.

15. Each Party undertakes to keep confidential and not to disclose any information whatever its nature (technical, financial, commercial, administrative or other) and in whatever form it is provided (written or oral, readable by human or machines) for the duration of the Agreement and 1 (one) year thereafter. Said confidential information shall be destructed by the receiving Party at the end of the Agreement. Each Party warrants that its employees, providers and subcontractors shall respect this confidentiality obligation.

16. In case of a material breach or in case of repeated breaches by one Party of its contractual obligations, not cured within 30 (thirty) days following the reception by the breaching Party of a registered letter notifying the breach, the non-breaching Party may ipso jure and without any other legal formalities terminate immediately and by rights the Agreement. No damages shall be paid to the breaching Party.

17. If either Party suffers a Force Majeure Event which prevents it from performing any of its obligations under this Agreement then, that non-performance will not constitute a breach of this Agreement. The Party suffering the Force Majeure Event must notify the other Party immediately and take all reasonable steps to alleviate the effects of the Force Majeure Event. If the Force Majeure Event continues its effects for more than 3 (three) months, either Party shall be able to terminate this Agreement subject to a prior’s thirty days’ notice.

18. This Agreement is governed by French Law.

Failing an amicable agreement between the parties WITH RESPECT TO any dispute RELATING to the interpretation, performance or termination of this Agreement, exclusive jurisdiction is expressly granted to the COMPETENT COURT OF PARIS NOTWITHSTANDING MULTIPLE DEFENDANTS OR THE INTRODUCTION OF THIRD PARTIES, AND EVEN IN THE CASE OF EMERGENCY, CONSERVATION, SUMMARY OR EX PARTE APPLICATION PROCEEDINGS.

19. No document other than the present Agreement shall have any contractual value if it has not been previously approved in writing by the Parties. In particular, will not be opposed to Arkena and shall be deemed null and void the Client general terms and conditions.