ACKSIN SERVICE TERMS AND AGREEMENT
These Service Terms and Agreement, together with the Subscription (as defined in Section 2 below), are an agreement (collectively, this “Agreement”) between Acksin, Inc., a Delaware corporation (“Acksin”), and the individual or company identified in the Subscription (“Customer”).
BY SIGNING UP TO ACCESS THE ACKSIN SERVICE YOU ARE REPRESENTING THAT YOU ARE OVER THE AGE OF 18, HAVE THE CAPACITY AND AUTHORITY TO ENTER INTO THIS AGREEMENT, AND ARE CONSENTING ON BEHALF OF YOURSELF AND/OR AS AN AUTHORIZED REPRESENTATIVE OF YOUR COMPANY, AS APPLICABLE, TO BE BOUND BY THIS AGREEMENT.
In consideration of the mutual promises contained in this Agreement, Acksin and Customer agree as follows:
Acksin runs a monitoring service intended for IT, operations and development teams which includes the features and functionality described at the acksinhq.com website (the “Site”) on the Subscription Date, as such features and functionality may change from time to time as provided in Section 6 (the “Service”). The Service is operated on Acksin’s hosting servers or those of its provider(s) to enable Customer and those of its employees who have been authorized by Customer (“Authorized Users”) to access and use the Service via the web. (If Customer is an individual subscribing for personal use, the term Authorized User shall refer to him or her.)
2. Subscription and Subscription Date.
As used in this Agreement, the term “Subscription” means (a) an online order for the Service completed and submitted by Customer through the Site and accepted by Acksin, (b) a written Customer purchase order for the Service accepted by Acksin, (c) another written agreement for the Service executed by both Acksin and Customer, or (d) an order for the Service by Customer through an authorized Acksin reseller. “Subscription Date” refers to, as applicable, (i) the date Customer submits its online order through the Site, (ii) the date Customer issues its written purchase order, (iii) the date both Customer and Acksin have executed a written agreement, or (iv) the date that an authorized Acksin reseller has commenced the Services on behalf of a Customer.
(a) This Agreement shall commence on the Subscription Date and, unless terminated early in accordance with Section 7 or 14 below, continue for (i) the number of months or year(s) specified in the Subscription as measured from the first day of the first calendar month after the Subscription Date, or (ii) if no period is specified in the Subscription, the end of the calendar month following the calendar month in which Customer gives notice of termination pursuant to this Section 3 (the “Initial Period”). This Agreement shall automatically renew for successive renewal periods of the same duration of the Initial Period (each, a “Renewal Period”) unless one party gives notice of termination or non-renewal pursuant to this Section 3 (the Initial Period, and all such Renewal Periods, collectively, the “Service Period”).
(b) If Customer is using the Service under a Pro, Enterprise or other fee-based pricing plan (each, a “Paying Plan”), this Agreement shall automatically renew for successive renewal periods of the same duration of the Initial Period unless one party gives notice to the other of its intent not to renew at least 30 days prior to the expiration of the then pending term. If Customer is using the Service under a Free or non-paying Trial plan (each, a “Free Plan”), this Agreement will be deemed month-to-month and either party shall be free to not renew, or to terminate, this Agreement immediately upon notice to the other.
(c) Notwithstanding the foregoing, if Customer has purchased the Services through an authorized Acksin reseller, the terms of Customer’s subscription with such reseller shall control with respect to the subscription term; provided, however, that if Acksin and such applicable reseller terminate their agreement, the Services will immediately terminate unless Customer enters into a new subscription with Acksin or another authorized reseller.
4. Pricing and Fees.
(a) Unless the parties agree otherwise in a separately executed written agreement for an Enterprise or other customized Paying Plan, fees for the Service (“Fees”) shall be based on the pricing published at the Site as of the Subscription Date for the Initial Period. All or certain of the Fees may be calculated on the basis of the number of hosts. For purposes of that determination and this Agreement, the term “host” refers to a concurrently monitored host/server, as determined by Acksin on a calendar month basis.
(b) Customer must be authorized to use the payment method Customer enters when creating a billing account. Customer authorizes Acksin to charge Customer for the Service using that payment method and for any paid feature of the Service that Customer chooses to sign up for or use during the Service Period of this Agreement. As indicated in a Subscription, Acksin may bill: (i) in advance; (ii) at the time of purchase; (iii) shortly after purchase; or (iv) on a recurring time- or usage-based basis.
(c) Customer must keep all information in Customer’s billing account current. Customer can access and modify Customer’s billing account information through the Site and may change its payment method at any time. If Customer notifies Acksin to stop using Customer’s previously designated payment method and fails to designate an alternative, Acksin may immediately suspend use and access to the Service. Any notice from Customer changing its billing account will not affect charges Acksin submits to Customer’s billing account before Acksin reasonably could act on Customer’s request.
(d) Acksin will notify Customer in advance, either through the Service or by email pursuant to Section 18(b), if Acksin changes Fees that would apply to Customer in a Renewal Period. If Customer does not agree to these changes, Customer must give notice of its intent to not renew the Agreement for such Renewal Period and stop using the Service on or before the effective date of termination. If Customer fails to give notice of non-renewal, Customer’s payment information on file will be charged at the new Fees thereafter.
(e) Payments for all accounts registered to pay via credit card are due the date the invoice is posted on Customer’s account. Payments for all accounts registered to pay via check, wire transfer or Automated Clearing House (ACH) are due within 30 days of the invoice date unless otherwise agreed-to by the parties in writing. If any payment is not made when due, Acksin may immediately suspend use and access to the Service.
(f) All Customer prepayments, if any, for the Service (monthly, yearly or otherwise) shall be deemed fully earned upon payment and are non-refundable; this includes accounts that are renewed.
(g) If this Agreement is terminated early by Customer pursuant to Section 7 or 14(a), or by Acksin pursuant to Section 14(b)(ii), Customer will not be obligated to pay the Fees following the effective date of termination. In all other cases, and regardless of whether Customer and its Authorized Users’ access or use the Service at the levels reflected in the Subscription or otherwise, Customer is responsible for paying all Fees through expiration of the Service Period.
(h) Any amount not paid when due will bear interest at the rate of 1.5% per month or the maximum rate permitted by applicable law, whichever is less, computed and compounded daily from the date due until the date paid. Further, in the event of any action by Acksin to collect any amount not paid when due, Customer will pay or reimburse Acksin’s costs of collection (including, without limitation, any attorneys’ fees and court costs).
(i) Notwithstanding the foregoing, if Customer has purchased the Services through an authorized Acksin reseller, the terms of Customer’s subscription with such reseller shall control with respect to all pricing and fees; provided, however, that Acksin may suspend or terminate Services to Customer if such applicable reseller has not paid the applicable fees due from reseller to Acksin for Customer’s use of the Services.
All Fees are exclusive of any applicable sales or other taxes or similar fees imposed by any government authority. Customer will (a) pay or reimburse all such taxes and fees (including any interest or penalties), if any, due, based on or measured by amounts payable by Customer under this Agreement (excluding taxes based on Acksin’s net income) or (b) furnish Acksin with evidence acceptable to the government authority to sustain an exemption therefrom.
6. Service Access and Use Rights.
7. Service Level Commitment.
Excluding scheduled maintenance windows, Acksin will use commercially reasonable efforts to maintain 99.8% availability of the hosted portion of the Service for each calendar month during the term of this Agreement. The Service will be deemed “available” so long as Authorized Users are able to login to the Service interface and access monitoring data. Excluding planned maintenance periods, in the event the Service availability drops below 99.8% for two consecutive months, Customer may terminate the Service in the calendar month following such two-month period upon written notice to Acksin. To assess uptime, Customer may, if under a Paying Plan, request the Service availability for a prior month by filing a support ticket through the Site.
Subject to this Agreement, if Customer is under a Paying Plan, Acksin will provide unlimited in-product and email support (“Support”). Although no response times are guaranteed, Acksin will use commercially reasonable efforts to respond to such support requests within 48 hours. Acksin may delegate the performance of certain portions of the Support to third parties, but will remain responsible to Customer for delivery thereof. In the event any Support is not performed with reasonable skill, care and diligence, Acksin will re-perform the Support to the extent necessary to correct the defective performance, and Customer acknowledges that re-performance shall be Customer’s sole and exclusive remedy for any defective performance. Notwithstanding the foregoing, if Customer has purchased the Services through an authorized Acksin reseller, such reseller shall be responsible for Tier 1 support and any other support terms set forth in Customer’s subscription with such reseller.
9. Agents; Third-Party Content.
Acksin will make various application program interfaces (APIs), agents, libraries and other materials available at the Site or through the Service from time to time in its discretion to support Customer’s access and use of the Service (collectively, “Agents”). Customer acknowledges and agrees that: (a) the Agents may only be used on systems owned, leased or primarily operated by Customer, (b) the Agents are made available solely to support access and use of the Service, and Acksin has no liability with respect to any other uses of the Agents, and (c) certain of the Agents may include third-party content that is subject to open source license terms that may expand or limit Customers’ rights to use such content. Customer agrees to review any electronic documentation that accompanies the Agents or is identified in a link provided to Customer to determine which portions of the Agents are open source and are licensed under open source license terms. To the extent any such license terms require that Acksin provide Customer the rights to copy, modify, distribute or otherwise use any open source software in the Agents that are inconsistent with the limited rights granted to Customer in this Agreement, then such rights in the applicable open source license terms shall take precedence over the rights and restrictions granted in this Agreement, but solely with respect to such open source software. Further, Customer acknowledges and agrees that all third-party content is governed by its respective terms and such terms are solely between Customer and the applicable licensor. Customer agrees to comply with such third-party terms (including open source license terms), as applicable, and Acksin has no liability with respect to third-party content under this Agreement.
10. Restrictions and Limitations.
(b) Customer is solely responsible for providing, installing and maintaining at its own expense all equipment, facilities and services necessary to enable Authorized Users’ access and use of the Service through the interface, including, without limitation all computer hardware and software and Internet access.
(c) Customer will use commercially reasonable efforts to ensure, through proper instructions and enforcement actions, that all access to and use of the Service by Customer or Authorized Users’, or otherwise through Customer’s facilities, equipment, identifiers or passwords, will conform to this Agreement and will be made and used solely for proper and legal purposes, and will be conducted in a manner that does not violate any law or regulation, the rights of any third party or this Agreement. Customer is solely responsible for tracking and for ensuring the security and confidentiality of all user identifiers and passwords. Acksin has no liability with respect to any use or misuse of such identifiers or passwords, and any use thereof other than as provided in this Agreement will be considered a breach of this Agreement by Customer.
(d) Without limiting the generality of Sections 10 and 12, no provision of this Agreement includes the right to, and Customer will not, directly or indirectly: (i) attempt to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (ii) take any action that imposes, or may impose at Acksin’s discretion, an unreasonable or disproportionately large load on Acksin’s infrastructure; (iii) knowingly upload invalid data, viruses, worms, or other software agents through the Service; (iv) enable any person or entity other than Authorized Users to access and use the Service or Technology (as defined in Section 12(b)); (v) modify or create any derivative work based upon the Service or Technology; (vi) engage in, permit or suffer to continue any copying or distribution of the Service or Technology; (vii) reverse engineer, disassemble or decompile all or any portion of, or attempt to discover or recreate the source code for, any software that is part of the Service or Technology; (viii) access the Service in order to build a competitive solution or to assist any third party to build a competitive solution; (ix) remove, obscure or alter any proprietary notice related to the Service or Technology; or (x) engage in, permit or suffer to continue any use or other activity that is not expressly authorized under this Agreement by any person or entity within Customer’s control (“Unauthorized Use”). In the event Customer violates any of the terms set forth in this Section, in addition to any other remedies available at law or in equity, Acksin will have the right, in its discretion, to immediately suspend Customer’s and Authorized Users’ use and access to the Service.
11. Rights Grants to Acksin.
(a) In order to provide and support the Service for the benefit of Customer, Customer hereby grants Acksin a worldwide, non-exclusive, royalty-free license during the Service Period to use, reproduce, electronically distribute, transmit, have transmitted, perform, display, store, and archive the data, text, software, audio, video, images or other content that Customer and/or any Authorized User run on or through the Service, cause to interface with the Service, upload to the Service, or otherwise transfer, process, use or store in connection with the Service (collectively “Customer Data”). Customer agrees that, so long as no Customer Confidential Information is publicly disclosed, Acksin may: (i) use Customer Data to refine, supplement or test Acksin’s product and service offerings; (ii) include aggregated and anonymized Customer Data in any publicly available reports, analyses and promotional materials; and (iii) retain anonymized, non-attributable Customer Data following any termination of this Agreement for use in connection with the foregoing.
(b) During the Service Period, Acksin may list Customer as a customer and use Customer’s name and logo on the Site, on publicly available customer lists and in media releases.
12. Proprietary Rights.
(a) Subject only to the limited rights expressly granted in this Agreement, as between Customer and Acksin, Customer shall retain all right, title and interest in and to the Customer Data and all intellectual property rights therein. Customer is solely responsible, and Acksin assumes no liability, for the Customer Data that Authorized Users or other third parties post, send or otherwise make available over or through the Service.
(b) As used in this Agreement, “Technology” means any and all know-how, processes, methodologies, specifications, designs, inventions, functionality, graphics, techniques, methods, applications, computer programs, libraries, user manuals, documentation, products or other technology and materials of any kind, or any enhancement thereto, used by Acksin in connection with the performance of the Service or the Support, or made available by Acksin to Customer, any Authorized User or any third party in connection with the Service or the Support. Without limiting the foregoing, Technology includes the products, services and technology makes available through the Site, the Agents, the Service interface and any Acksin branded or co-branded websites (including sub-domains, widgets and mobile versions).
(c) The Service and Technology constitute or otherwise involve valuable intellectual property rights of Acksin and all right, title and interest in and to the foregoing shall, as between the parties, be owned by Acksin. No title to or ownership of the Service or Technology, or any intellectual property rights associated therewith, is transferred to Customer, any Authorized User or any third party under this Agreement. Sections 6 and 9 set forth the entirety of Customer’s limited rights to access and use the Service and Agents and to make the Service and Agents available to Authorized Users. Except with respect to certain of the Agents, in no event shall Customer be entitled to access or review any object code or source code. Acksin reserves all rights to the Service and Technology not otherwise expressly granted herein.
(a) As used in this Agreement, “Confidential Information” means any information that is proprietary or confidential to the Discloser (as defined below) or that the Discloser is obligated to keep confidential (e.g., pursuant to a contractual or other obligation owing to a third party). Confidential Information may be of a technical, business or other nature. However, Confidential Information does not include any information that: (i) was known to the Recipient (as defined below) prior to receiving the same from the Discloser in connection with this Agreement; (ii) is independently developed by the Recipient; (iii) is acquired by the Recipient from another source without restriction as to use or disclosure; or (iv) is or becomes part of the public domain through no fault or action of the Recipient.
(b) Each party reserves any and all right, title and interest (including any intellectual property rights) that it may have in or to any Confidential Information that it may disclose to the other party under this Agreement. The party that receives any Confidential Information (the “Recipient”) of the other party (the “Discloser”) will protect Confidential Information of the Discloser against any Unauthorized Use or disclosure to the same extent that the Recipient protects its own Confidential Information of a similar nature against Unauthorized Use or disclosure, but in no event will use less than a reasonable standard of care to protect such Confidential Information; provided that the Confidential Information of the Discloser is conspicuously marked or otherwise identified as confidential or proprietary upon receipt by the Recipient or the Recipient otherwise knows or has reason to know that the same is Confidential Information of the Discloser. The Recipient will use any Confidential Information of the Discloser solely for the purposes for which it is provided by the Discloser. This Section will not be interpreted or construed to prohibit: (i) any use or disclosure which is necessary or appropriate in connection with the Recipient’s performance of its obligations or exercise of its rights under this Agreement or any other agreement between the parties; (ii) any use or disclosure required by applicable law, provided that the Recipient uses reasonable efforts to give the Discloser reasonable advance notice thereof to afford the Discloser an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information; or (iii) any use or disclosure made with the consent of the Discloser. In the event of any breach or threatened breach by the Recipient of its obligations under this Section 13(b), the Discloser will be entitled to injunctive and other equitable relief to enforce such obligations. The obligations of confidentiality shall survive expiration or termination of this Agreement.
14. Early Service Termination.
(a) Either party may terminate this Agreement prior to the end of the Service Period in the event of a material breach of this Agreement by the other party if such other party fails to correct such breach within 30 days of notice.
(b) In addition to the rights under Section 14(a), Acksin may terminate this Agreement immediately upon notice to Customer (i) if Customer breaches any provisions of Section 6, 9 or 10, (ii) in order to comply with applicable laws or regulations, (iii) if Customer defaults in the timely payment of any amounts due Acksin under a Paying Plan, or (iv) if Customer has purchased the Services through a reseller that is no longer an authorized reseller of Acksin..
15. Effect of Expiration or Early Service Termination.
(a) Upon expiration or earlier termination of this Agreement: (i) any and all rights granted to Customer with respect to the Service and Technology, and except as set forth in Section 11 any and all rights granted to Acksin with respect to the Customer Data, will terminate effective as of the effective date of termination; (ii) Customer will return to Acksin any and all Confidential Information of Acksin in the possession or control of Customer; (iii) subject to Section 15(b), Acksin will return to Customer any and all Confidential Information of Customer in its possession or control; (iv) Acksin will have no obligation to provide the Service to Customer or Authorized Users after the effective date of the termination; and (v) Customer will pay to Acksin any amounts payable for Customer’s and Authorized User’s use of the Service through the effective date of the termination, together with all other amounts in accordance with Section 4. This Section 15 and Sections 4, 5, 10 through 13 and 16 through 18 shall survive the expiration or earlier termination of this Agreement.
(b) Acksin’s only obligation with respect to any electronic information transmitted or received by Customer or Authorized Users in relation to Customer’s and Authorized User’s use of the Service is, upon Customer’s request, to promptly delete or destroy the information that is stored, if any, in the Service database on the effective date of termination. Customer acknowledges the duration of the retention of such information is determined by the terms of the applicable Free Plan or Paying Plan. In addition, Customer acknowledges that although information in the Service database will be deleted from its transaction servers, Acksin may retain such information stored on automatic backup archiving systems during the period such backup or archived materials are retained under Acksin’s customary procedures and policies. In addition, Acksin may retain certain information as provided in Section 11(a)(iii).
16. Representations and Indemnities.
(a) Customer hereby represents and warrants to Acksin that Customer has the authority to enter into and perform this Agreement and the Customer’s entering into this Agreement, and performance of its obligations and exercise of its rights under this Agreement, do not and will not violate any applicable laws, regulations or orders.
(b) Customer hereby represents, warrants and covenants that, without limiting the foregoing: (i) Customer or its licensors owns all right, title and interest in and to Customer Data; (ii) Customer has all rights in Customer Data necessary to grant the rights contemplated by this Agreement; and (iii) Customer has obtained any necessary third-party approvals, including without limitations applicable vendors and licensors, in relation to third-party content to be used by Customer in connection with the Service or will obtain such approvals prior to such use.
(c) Acksin hereby represents, warrants and covenants to Customer, if under a Paying Plan, that: (i) the Service and Technology as delivered to Customer and used in accordance with this Agreement will not infringe on any intellectual property right or other right of any other person or entity and (ii) Acksin has all rights in the Service and Technology necessary to grant the rights contemplated by this Agreement.
(d) Customer agrees to defend, indemnify and hold harmless Acksin and its employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including without limitation attorneys’ fees) arising out of or related to: (i) Customer’s and Authorized Users’ use of and access to the Service; (ii) Customer’s or an Authorized User’s violation of any term of this Agreement; (iii) Customer’s or an Authorized User’s violation of any third-party right, including without limitation any right of privacy, publicity rights or intellectual property rights; (iv) Customer’s or an Authorized User’s violation of any law, rule or regulation; (e) any claim or damages that arise as a result of any Customer Data; or (v) any other party’s access and use of the Service with provided identifier(s) and password(s).
(e) Acksin agrees to defend, indemnify and hold harmless Customer, if under a Paying Plan, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including without limitation attorneys’ fees) arising out of or related to: (i) Acksin’s breach of any representation, warranty or obligation in this Agreement or (ii) Acksin’s violation of any law, rule or regulation. In addition, if the Service or Technology becomes the subject of a claim of infringement of a U.S. copyright or patent, Acksin will indemnify Customer, if under a Paying Plan, against such claim provided that Customer gives Acksin prompt written notice of the claim, allows Acksin to direct the defense and settlement of the claim, and cooperates with Acksin as necessary, at Acksin’s expense, for defense and settlement of the claim. If the Service or Technology becomes, or, in Acksin’s opinion is likely to become, the subject of such a claim, Acksin shall have the right to obtain for Customer the right to continue using the Service or Technology, replace or modify the Service or Technology so that it becomes non-infringing, or terminate the rights granted hereunder to such Service or Technology with refund to Customer of any fees paid for such Service and Technology (less a reasonable charge for the period during which Customer has had available to it the use of such Service and Technology). Acksin will have no liability for any infringement claim to the extent it (1) is based on modification of the Service or Technology other than by Acksin; (2) results from failure of Customer to use any updated version of Service or Technology provided by Acksin to Customer; (3) is based on the combination or use of the Service or Technology with any other software, program or device not provided by Acksin if such infringement would not have arisen but for such use or combination; (4) results from compliance by Acksin with designs, plans or specifications furnished by Customer; or (5) results from Customer’s operation of the Service or Technology in a manner that is inconsistent with its intended use. THE FOREGOING STATES ACKSIN’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDIES FOR INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT. IF UNDER A FREE PLAN, CUSTOMER ACKNOWLEDGES THAT THIS SECTION 10(e) SHALL BE DEEMED DELETED AND OF NO FORCE OR EFFECT.
(f) EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICE, TECHNOLOGY, SUPPORT AND ALL OTHER ITEMS PROVIDED IN CONNECTION THEREWITH ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. ACKSIN DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY ERROR, DEFECT, DEFICIENCY, INFRINGEMENT OR NONCOMPLIANCE IN THE SERVICE, TECHNOLOGY, SUPPORT OR ANY OTHER ITEMS PROVIDED BY, THROUGH OR ON BEHALF OF ACKSIN UNDER THIS AGREEMENT (INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE).
17. Limitations of Liability.
(a) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES, DIRECTORS, EMPLOYEES OR ITS VENDORS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE SERVICE OR THE SUPPORT; PROVIDED, HOWEVER, THAT SUCH LIMITATIONS SHALL NOT APPLY TO: (I) DAMAGES ARISING OUT OF A PARTY’S FAILURE TO COMPLY WITH ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 13; (II) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 16(d) OR 16(e) (AS APPLICABLE); OR (III) CUSTOMER’S PAYMENT OBLIGATIONS TO ACKSIN.
(b) UNDER NO CIRCUMSTANCES WILL ACKSIN BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR CUSTOMER’S ACCOUNT(S) OR THE INFORMATION CONTAINED THEREIN. ACKSIN ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM CUSTOMER’S OR AUTHORIZED USERS’ ACCESS TO AND USE OF THE SERVICE OR SUPPORT; (III) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (IV) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (IV) CUSTOMER DATA OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. EXCEPT FOR THEIR RESPECTIVE INDEMNITY AND CONFIDENTIALITY OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY, THEIR AFFILIATES, DIRECTORS, EMPLOYEES, OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY AUTHORIZED USER FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE FEES CUSTOMER PAID TO ACKSIN HEREUNDER.
(c) THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF THE NON-BREACHING PART HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
(a) Customer may not delegate, assign or transfer this Agreement or any of its rights and obligations under this Agreement and any attempt to do so shall be void.
(c) The Service is provided to the U.S. Government as “commercial items,” “commercial computer software,” “commercial computer software documentation,” and “technical data” with the same rights and restrictions generally applicable to the Service. If Customer or any Authorized User is using the Service on behalf of the U.S. Government and these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, Customer and its Authorized Users must immediately discontinue use of the Service. The terms listed above are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.
(d) In connection with this Agreement, Customer will comply with all applicable import, re-import, export, and re-export control laws and regulations, including the Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control. For clarity, Customer is solely responsible for compliance related to the manner in which Customer chooses to use the Service, including the transfer and processing of Customer Data.
(e) The parties expressly understand and agree that their relationship is that of independent contractors. Nothing in this Agreement shall constitute one party as an employee, agent, joint venture partner or servant of another.
(f) Acksin shall have no liability to Customer, Authorized Users or third parties for any failure or delay in performing any obligation under this Agreement due to circumstances beyond its reasonable control, including without limitation acts of God or nature, fires, floods, strikes, civil disturbances or terrorism or interruptions in power, communications, satellites, the Internet or any other network that are beyond its reasonable control.
(g) This Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the State of New York, without reference to its choice of law principles.