1. Your relationship with us
1.1 Use of System Subject To Terms
Your use of our products, software and services (referred to collectively as the "System" in this document and excluding any services provided to you by us under a separate written agreement) is subject to the terms of these Terms.
The term "You" or "you" means the company, entity who is executing these Terms and thus acquiring the license to use the System under these Terms; "we" or "us" means Akliz, Inc., a Massachusetts corporation, and "both of us" means both you and us.
2.1 Agreement to Terms
In order to use the System, you must first agree to these Terms. You may not use the System if you do not accept these Terms. You can accept these Terms by clicking to accept or agree to these Terms, where this option is made available to you by us in the user interface for any service; or by actually using the System. You understand and agree that we will treat your use of the System as acceptance of these Terms from that point onwards.
2.2 Eligibility to Use the System
You may not use the System if (a) you are not of legal age (either under the laws of the Commonwealth of Massachusetts or the laws of the jurisdiction of which you are a resident or from which you use the System) to form a binding contract with us, or (b) you are a person barred from using the System under the laws of the United States or other countries including the country in which you are resident or from which you use the System.
2.3 Use by Minors
Any individual under the age of 18 years ("Minor") must have a parent or guardian accept these Terms in order for such Minor to use the System. A parent or guardian who accepts these Terms on behalf of a Minor will be primarily liable for ensuring complete and proper compliance with the Terms, including any payment obligation. A parent or guardian who accepts these Terms on behalf of a Minor will continue to be primarily liable for the obligations mentioned in these Terms even when the Minor has attained the age of 18, unless the parent or guardian obtains our express written consent to the contrary.
2.4 Execution of Terms by an Organization
If you are entering into these Terms on behalf of a company or other organization, you must have the authority to bind your company or organization to these Terms and commit funds on its behalf. Titles that typically carry that authority include, without limitation: Chairman, Principal, President, Officer, Vice President, Director, Controller, Finance Manager or Purchasing Manager. We may terminate your use, in our sole discretion, that you do not have the appropriate authority.
2.5 Representation of Eligibility
In any of the above cases, case, you represent that you satisfy all of the above eligibility conditions. If you do not satisfy the above conditions, or if you do not agree with these Terms, you may not accept these Terms and may not use the System or any portion thereof, in that case, we may also terminate these Terms and your use hereunder immediately without liability to you.
3. License from us; additional services
3.1 Grant of License
Subject to these Terms, we give you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software provided to you by us as part of the System as provided to you by us (referred to as the "Software").
3.2 Restrictions on Assignment
These Terms and your license granted under these Terms are personal to you (and your Personnel (as defined below) in the course of their work for you), and do not include the right to sublicense your rights under these Terms to any third party. You may not transfer or assign, by operation of law or otherwise, these Terms or your license to any third party without our prior written consent, which may be withheld in our sole discretion for any reason or for no reason. Notwithstanding the foregoing, you may permit your employees, consultants or other third-party service providers (collectively, “Personnel”) to access and use your account on your behalf; provided that you shall be responsible for ensuring that your Personnel comply with these Terms and any applicable end user license agreement to which they assent. If you acquire a third party entity or acquire substantially all of the assets of a third party entity, or are acquired by a third party, in each case, whether by merger, change of control, sale of assets, consolidation or otherwise, such event shall be considered an assignment of these Terms for this purpose. Any assignment or attempted assignment in violation of these terms shall be of no effect, and shall constitute a breach of these Terms and result in the immediate and automatic termination of your license rights under these Terms; any renewal of such rights shall, if then available, be at our sole discretion, and will be on terms and conditions applicable at the time of renewal.
3.3 Additional Services
In addition to providing the License to the System and the Software, we also can provide to you, upon our written agreement and at our standard rates then in effect, additional services that are related to and/or ancillary to the System, including but not limited to information technology hosting services and supplemental services related thereto.
4. Limitation on our license
4.1 Restrictions on Use
You may not (and you may not permit anyone else, on your behalf of otherwise, to) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Software or any part thereof, unless this is expressly permitted or required by law, or unless you have been specifically told that you may do so by us, in writing.
4.2 Prohibition Against Assignment or Sublicense
You may not assign (or grant a sub-license of) your rights to use the Software, grant a security interest in or over your rights to use the Software, or otherwise transfer any part of your rights to use the Software.
4.3 Agreement to Install Updates
The System may cause your computer system or other device to download and install updates from time to time. These updates are designed to improve, enhance and further develop the System and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. You consent and agree to receive and permit the installation of such updates (and to permit us to deliver these to you) as part of your use of the System. These Terms shall apply to any such updated Software and System.
5. Use of the system by you
5.1 Provision of Registration Information
In order to access the System, you may be required to provide information about yourself (such as identification or contact details) from time to time, including, but not limited to, as part of the registration process for the System, or as part of your continued use of the System. You agree that any registration information you give to us will always be accurate, correct and up to date. We agree to take commercially reasonable steps to preserve the confidentiality of such information.
5.2 Compliance with Law
You agree to use the System only for purposes, and in a manner, permitted by (a) these Terms and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions including, without limitation, any regulations of the United States Bureau of Export Administration and other applicable governmental agencies. In addition, you hereby assure us that you will not export directly or indirectly technical data to any country for which a validated license is required under United States law without first obtaining a validated license. Further, you represent and warrant that you are not a national of, or under the control of, any country upon which the United States has then currently imposed an embargo of goods.
6. Limitation on access to and use of the system
6.1 Restrictions on Access
You agree not to access (or attempt to access) any of the System by any means other than through the interface(s) that are provided by us, unless you have been specifically allowed to do so in a separate written agreement executed by us. Without limiting the generality of the foregoing, you specifically agree not to access (or attempt to access) any of the System through any automated means (including use of scripts or crawlers). Similarly, you agree that you will not provide any third party access to material on the System (or facilitate their attempt to access) by any means other than through the interface that is provided by us, unless you have been specifically allowed to do so in a separate written agreement executed by us.
You agree that you will not engage in any activity that interferes with or disrupts the System (or the servers and networks which are connected to the System).
6.3 Prohibition on Reproduction/Resale of the System
Although you may use the System and the Software to create, develop and/or maintain a website (either a public-facing website on the Internet or one contained on a private, intranet), software, an active server page (ASP) or software as a service (SaaS), among other things, you may not reproduce, duplicate, copy, sell, trade or resell the System, in whole or in part, for any purpose that competes with our business of offering the System and the Software to other customers.
6.4 Responsibility for Breach
You agree that you are solely responsible for (and that we have no responsibility to you or to any third party for) any breach of your obligations under these Terms and for the consequences (including any loss or damage which we may suffer) of any such breach.
6.5 Compliance With Standards of Conduct
You agree not to use the System in violation of our standards of conduct posted at www.akliz.net/conduct as amended from time to time, in particular you may not: use the System in a manner that would cause you or us to violate any applicable local, state, national or international law, including any rules and regulations of any securities exchange, any rules, regulations, requirements, procedures or policies in force from time to time relating to the System, and any export or re-export laws, rules and regulations; interfere with or disrupt the System or take any steps to interfere with or in any manner compromise any security measures with respect to the System or any data or file transmitted, processed or stored on or through the System.
7. Your passwords and account security
7.1 Responsibility to Maintain Confidentiality
You are responsible for maintaining the confidentiality of passwords associated with any account you use to access the System. Accordingly, you will be solely responsible to us for all activities that occur under your account. If you become aware of any unauthorized use of your password or of your account, you agree to notify us immediately.
8. Payment for services
8.1 Services; Fees
You agree to pay all charges, recurring fees, applicable taxes and other charges (collectively herein "Charges") incurred by you (or anyone who is using an authorized user account that you have caused to be created or for which you have otherwise indicated your agreement to be responsible for payment) at the rates in effect for the billing period in which those charges are incurred. Charges may include among other things, setup fees, administrative fees, access fees (whether based on usage of the System or Software, or otherwise), upgrade fees, additional services fees and/or maintenance fees. We may change rates or institute new charges at any time upon 30 days prior notice.
8.2 Payment Terms
All payments shall be made at our address as indicated in these Terms or at such other address as we may from time to time indicate by proper notice hereunder. All invoices are due by the due date of the invoice. Interest shall be payable at the rate of one and one-half percent (1.5%) per month or at the maximum rate permitted by law, whichever is less, on all overdue and unpaid invoices until paid in full. All fees are denominated and to be paid in United States Dollars and are exclusive of any applicable taxes. You shall pay, indemnify and hold us harmless from all sales, use, value added or other taxes of any nature, other than personal property or taxes on or measured by our net or gross income, including penalties and interest, and all government permit or license fees assessed upon or with respect to any fees. If your account is delinquent, we may, at our sole discretion, suspend or cancel your account (and accordingly your use of the System). If your account is suspended, regular charges will continue to accrue until you cancel your account.
8.3 Billing Disputes
You must inform us of any billing problems or discrepancies within 90 days after they first appear on your account statement. If you do not bring them to our attention within 90 days, you agree that you waive your right to dispute such problems or discrepancies. Additionally, if any charges are being collected by us on behalf of a supplier, then such supplier shall be an express third party beneficiary of this section.
9. Privacy and your personal information
9.1 Compliance with Privacy Policies
10. Proprietary Rights
10.1 Ownership of Intellectual Property
We (or our licensors) own all legal right, title and interest in and to the System, including any intellectual property rights which subsist in the System (whether those rights happen to be registered or not, and wherever in the world those rights may exist). The System may contain information which is designated confidential by us and you shall not disclose such information without our prior written consent.
10.2 Ownership of Content
We obtain no right, title or interest from you (or your licensors) under these Terms in or to any information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) (collectively, “Content”) that you transmit or display on, or through, the System, including any intellectual property rights which subsist in that Content (whether those rights happen to be registered or not, and wherever in the world those rights may exist). You are responsible for protecting and enforcing those rights and we have no obligation to do so on your behalf.
10.3 Notices/Protection of Proprietary Rights
You may not remove, obscure, or alter any proprietary rights notices (including copyright and trade mark notices) which may be affixed to or contained within the System. In using the System, you will not use any trade mark, service mark, trade name, logo of any company or organization in a way that is likely or intended to cause confusion about the owner or authorized user of such marks, names or logos. Nothing in these Terms gives you a right to use any of our trade names, trade marks, service marks, logos, domain names, and other distinctive brand features without obtaining, in each instance, our prior written consent.
11. Content license from you
11.1 Rights to Content
You retain copyright and/or any other rights you already hold in any and all Content which you submit, post or display on or through, the System.
11.2 Grant of Ancillary Right
You acknowledge and agree that, in the course of performing the technical steps required to provide the System to our users, we may (a) transmit or distribute your Content over various public networks and in various media for the purpose of fulfilling our obligations under these Terms; and (b) make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media for the purpose of fulfilling our obligations under these Terms.
11.3 Authority to Grant License
You represent and warrant to us that you have all the rights, power and authority necessary to grant the above license.
12. Other content
12.1 Links to External Resources
The System (and any advertising on the System, if applicable) may include links to third-party content or resources (“External Resources”) including, without limitation, web pages. We may have no control over such External Resources. We expressly disclaim any responsibility for any inaccuracy in any information or other materials contained in any External Resources and any defective products or services provided by, or advertised on, any External Resources. We do not endorse, nor does the display or posting of any link on any part of the System imply that we endorse, any External Resource or any products or services described therein. We expressly disclaim any responsibility for the availability of any External Resources. You acknowledge and agree that we are not liable for any loss or damage which may be incurred by you as a result of the availability (or lack of availability) of those External Resources, or as a result of your reliance on the completeness, accuracy or existence of any advertising, products or other materials on, or available from or through any External Resource.
13. Consent to temporary storage and transfer
13.1 Consent to Transmissions
The System may transmit or receive electronic files containing third-party content by interaction with other users, and by other users through the use of your computer, including temporary storage of information on your computer. You hereby consent to such transmissions and to the corresponding use of your bandwidth and your digital storage space by the System.
Term; Ending your relationship with us
You agree to use the System, and these Terms shall be effective and shall govern such use, for a period of one (1) year from the date that you accept these Terms, unless your right to use the System is earlier terminated in accordance with Section 14.2. Following the initial term, these Terms shall renew automatically on an annual basis unless either party notifies the other party in writing of its desire to cancel the effectiveness of these Terms at least sixty (60) days prior to the expiration of the then current term.
14.2 Termination for Cause
Notwithstanding the foregoing, either party may terminate the effectiveness of these Terms for cause upon thirty (30) days written notice in the event the other party breaches a material provision of these Terms, which breach is not cured within thirty (30) days.
14.3 Suspension or Termination
We may, at any time, stop (permanently or temporarily) providing the System (or any features within the System) to you or to users generally at our sole discretion, and/or terminate these Terms or all or some of your rights under these Terms if:
- you (or your Personnel) have breached any provision of these Terms (or have acted in a manner which clearly shows that you or your Personnel do not intend to, or are unable to comply with the provisions of these Terms), and we shall have no obligation to refund to you any fees already paid; or
- there is an attack on the System, the System is accessed or manipulated by a third party without your consent, or there is another event for which we reasonably believe that the suspension of your access to the System is necessary to protect our network or our other customers; or
- we are required to do so by law (for example, where providing you or your Personnel access to the System may be, or become, unlawful); or
- the partner with whom we offered the System to you has terminated its relationship with us or ceased to offer the System to you; or
- we are, or anticipate, no longer providing the System to users in the jurisdiction containing your residence or your principal place of business or from which access to the System may be made on your behalf; or
- the provision of the System to you or your Personnel by us is, in our opinion, no longer commercially viable.
14.4 Unauthorized Assignment
In addition, all of your rights to access the System under these Terms shall automatically terminate in the event of an unauthorized assignment, as described in Section 3.2. If we disable access to your account, you may be prevented from accessing the System, your account details or any files or other Content which is contained in your account.
14.5 Effect of Termination
Upon any termination of these Terms, your right to use the System terminates, but the provisions under "Limitation on Our License" (Section 4), "Limitation on Access to AND USE OF the System" (Section 6), "Proprietary Rights" (Section 10)," Exclusion Of Warranties" (Section 15), "INDEMNIFICATION" (Section 16), Limitation of Liability" (Section 17) and "General Legal Terms" (Section 21) continue to apply to both of us even after termination.
15. Exclusion of Warranties
THE SYSTEM (INCLUDING ANY ADVERTISING DISPLAYED THEREON, IF APPLICABLE) AND ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH USE OF THE SYSTEM (THE “MATERIALS”) IS MADE AVAILABLE “AS IS, AS AVAILABLE”. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND RELATING TO THE SYSTEM OR THE MATERIALS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WE DO NOT PROMISE THAT YOUR USE OF THE SYSTEM AND/OR THE SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE, AND YOU ACKNOWLEDGE THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF YOUR PRIVACY AND CONFIDENTIAL INFORMATION. YOU ALONE SHALL BEAR THE RISK AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM USE OF THE SYSTEM OR ANY MATERIALS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OR FROM THE SYSTEM SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
15.2 Subsequent Versions of the Software
The license granted to you under these Terms is for the most current version of the Software as of the time we make such version available to you under these Terms. We may release future versions of the Software under these Terms or different terms. Except as expressly stated otherwise in these Terms, nothing in these Terms (a) gives you the right to any future version of the Software; or (b) is a commitment to you of compatibility between the Software and any future versions of the Software.
YOU AGREE TO INDEMNIFY, HOLD HARMLESS AND DEFEND US AND OUR SUBSIDIARIES, AFFILIATES, OFFICERS, AGENTS, CO-BRANDERS OR OTHER PARTNERS, AND EMPLOYEES, AT YOUR EXPENSE, AGAINST ANY AND ALL THIRD PARTY CLAIMS OR DEMANDS, ACTIONS, PROCEEDINGS AND SUITS AND ALL RELATED LIABILITIES, DAMAGES, SETTLEMENTS, PENALTIES, FINES COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEY'S FEES AND OTHER DISPUTE RESOLUTION EXPENSES) INCURRED BY US, DUE TO OR ARISING OUT OF DATA OR CONTENT THAT YOU OR YOUR PERSONNEL SUBMIT, POST TO, TRANSMIT OR COMMUNICATE THROUGH THE SYSTEM, YOUR OR YOUR PERSONNEL’S USE OR MISUSE OF THE SYSTEM, YOUR OR YOUR PERSONNEL’S CONNECTION TO OTHER USERS, YOUR OR YOUR PERSONNEL’S VIOLATION OF THESE TERMS, OR YOUR OR YOUR PERSONNEL’S VIOLATION OF ANY RIGHTS OF ANOTHER.
17. Limitation of liability
OUR AGGREGATE LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, DIRECT OR INDIRECT, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR YOUR USE OF (OR INABILITY TO USE) THE SYSTEM SHALL NOT EXCEED THE GREATER OF THE SUM OF ALL AMOUNTS RECEIVED BY US FROM YOU DURING THE PREVIOUS SIX (6) MONTHS. IN NO EVENT SHALL WE (OR ANY OF OUR SUPPLIERS OR LICENSORS) BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, TORT OR ANALOGOUS DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS, LOSS OF BUSINESS, OR LOSS OF GOODWILL, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR YOUR USE OF (OR INABILITY TO USE) THE SYSTEM, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
18. Copyright and trade mark policies
It is our policy to respond to notices of alleged copyright infringement that comply with applicable intellectual property law (including the Digital Millennium Copyright Act) and to terminate the accounts of repeat infringers. Details of our policy can be found at www.akliz.net/dmca.
19. Changes to these terms
We may make changes to these Terms from time to time. When these changes are made, we will make a new copy of these Terms available at www.akliz.net/tos. If you use the System after the date on which these Terms have changed, you agree that said use indicates acceptance of the updated Terms.
20. U.S. government end users
The Software used to provide the System is a "commercial item," as that term is defined in 48 C.F.R. 12.101 (Oct. 1995), consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire the Software with only those rights set forth herein.
21. General legal terms
21.1 Use of Third Party Software, Services or Goods
Sometimes when you use the System, you may (as a result of, or through your use of the System) use a service or download a piece of software, or purchase goods, which are provided by another person or company. Your use of these other services, software or goods may be subject to separate terms between you and the company or person concerned. If so, these Terms do not affect your legal relationship with these other companies or individuals.
21.2 Entire Agreement
The Terms constitute the whole legal agreement between both of us and governs your use of the System (but excluding any services which we may provide to you under a separate written agreement), and completely replace any prior agreements between both of us in relation to the System.
You agree that we may provide you with notices by email, regular mail, or postings on the System.
You agree that if we do not exercise or enforce any legal right or remedy which is contained in these Terms (or which we have the benefit of under any applicable law), this will not be taken to be a formal waiver of our rights and that those rights or remedies will still be available to us.
If any court of law, having the jurisdiction to decide on this matter, rules that any provision of these Terms is invalid, then that provision will be removed from these Terms without affecting the rest of these Terms. The remaining provisions of these Terms will continue to be valid and enforceable.
21.6 Third Party Beneficiaries
You acknowledge and agree that each member of the group of companies of which we are the parent shall be third party beneficiaries to these Terms and that such other companies shall be entitled to directly enforce, and rely upon, any provision of these Terms which confers a benefit on (or rights in favor of) them. Other than this, and except as expressly provided otherwise in these Terms, no other person or company shall be third party beneficiaries to these Terms.
21.7 Governing Law
The Terms, and your relationship with us under these Terms, shall be governed by the laws of the Commonwealth of Massachusetts without regard to its conflict of laws provisions. You and we agree to submit to the exclusive jurisdiction of the courts located within Suffolk County, Massachusetts to resolve any legal matter arising from these Terms. Notwithstanding this, you agree that we shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.