Effective Date: April 30, 2024
This Agreement, presented as an official public offer by the Licensor (as defined below) to engage in a service agreement with any Licensee (as defined below), is made between:
Techprom limited Company (address :15/F, RADIO CITY, 505 HENNESSY ROAD CAUSEWAY BAY, HONG KONG) and any individual who accepts the terms of this Agreement (“Licensee”).
The terms “Licensor” and “Licensee” shall hereinafter be individually referred to as “Party” and collectively as “Parties”, as applicable.
This Agreement describes the basic rules for using the service https://aclservice.io/ and where it is applicable Telegram bot @Aslservice_bot.
WHEREAS:
(i) The Licensee desires to utilize the services outlined in this Agreement;
(ii) The Licensor agrees to provide the Licensee with said services as outlined in this Agreement.
By ordering, paying for, or providing the potential Licensee’s data for the services offered by the Licensor, the Licensee accepts the terms and conditions of this Agreement as follows:
1. GENERAL PROVISIONS
1.1. This Agreement is made by providing the Licensee’s full and unconditional consent to conclude the Agreement in full, without signing a written copy of the Agreement by the Parties.
1.2. The Agreement holds complete legal validity and is deemed equivalent to a written agreement signed by the Parties.
1.3. The Licensee confirms having familiarized themselves with and fully agreeing to all terms and conditions outlined in this Agreement by accepting it.
1.4. Acceptance of this public offer agreement includes any of the following actions: registering as a Licensee on the Licensor’s website, placing an order for Licensor’s services through the website or its networks, making payment for the services as per this Agreement, or sending written (including electronic) notification of acceptance to the provided email address.
1.5. By entering into this Agreement, the Licensee automatically agrees to fully and unconditionally accept all provisions of this Agreement, including service prices and any integral annexes.
1.6. The Licensor reserves the right to introduce amendments to this Agreement at any time at its sole discretion without prior notification to the Licensee, and the Licensee shall from time to time review this Agreement, the current version of which shall be at all times available on the website https://aclservice.io . Where the Licensee does not accept the updated terms and conditions of this Agreement, the Licensee shall immediately stop using the services of the Licensor provided for under this Agreement.
1.7. If the Licensee does not agree with the terms of the Agreement, he is not entitled to enter into this Agreement, and also does not have the right to use the Services under this Agreement.
1.8. Licensee provide information about a wallet or transaction from various network sources and, through analysis, assess its risk using our machine learning models. Мake any decisions about working or not working with your counterparty at your own discretion.
2. DEFINITIONS
When used in this Agreement, the following terms shall have the respective meanings indicated, such meanings to be applicable to both the singular and plural forms of the terms defined:
“Access Credentials” means any username, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual’s identity and authorization to access and use Hosted Services.
“Action” has the meaning set forth in Section 13.1.
“Agreement” has the meaning set forth in the preamble.
“Authorized User” means each of the individuals authorized by or on behalf of Licensee to use the Services pursuant to Section 4.1.
“Confidential Information” means, as set forth in Section 10.1 and including, without limitation, the Services, the Licensor Materials and terms and conditions of this Agreement.
“Disclosing Party” has the meaning set forth in Section 10.1.
“Documentation” means the documentation for the Software and Services – any manuals, instructions or other documents or materials that Licensor provides or makes available to Licensee in any form or medium and which describe the functionality, components, features or requirements of the Services or Licensor Materials, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
“Effective Date” is the date of acceptance by the Licensee of the terms of this Agreement.
“Error” means a material and continuing failure of the Software and Services to function in conformity with the Specifications.
“Fees” has the meaning set forth in Section 9.1.
“Force Majeure Event” has the meaning set forth in Section 15.1.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws or practice, and all similar or equivalent rights or forms of protection, in any part of the world.
“Law” means any applicable statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, local or foreign government or political subdivision thereof, regulatory agency or arbitrator, mediator, court or tribunal of competent jurisdiction.
“Licensee Data” means, other than Resultant Data, information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Licensee or an Authorized User by or through the Services.
“Privacy Policy” means Licensor`s and its affiliates’ data privacy policies, as posted on https://aclservice.io , as may be amended by Licensor or its affiliates from time to time.
“Receiving Party” has the meaning set forth in Section 10.1.
“Renewal Term” has the meaning set forth in Section 11.2.
“Representatives” means, with respect to a Person, that Person’s affiliates and their employees, officers, directors, consultants, agents, independent contractors, service providers, sub-licensees, subcontractors and legal, tax and financial advisors.
“Services” means any services provided by Licensor or its contractors to Licensee in connection with this Agreement, including software as a service (SaaS), installation, configuration, integration, customization training, and/or technical support, as specified on the relevant page of the website https://aclservice.io , including Hosted Services (and where it is applicable Telegram bot @Aslservice_bot).
“User Agreement” means Licensor’s and its affiliates’ terms of use, as posted on https://aclservice.io , as may be amended by Licensor or its affiliates from time to time.
“Third Party Materials” means materials and information, in any form or medium, including any software, documents, data, content, specifications, products, equipment or components of or relating to the Services that are not proprietary to Licensor.
3. SERVICES
3.1. Services. Subject to and conditioned upon the Licensee’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, during the Term, the Licensor shall make commercially reasonable efforts to provide the Services to the Licensee and its Authorized Users as outlined herein. This includes hosting, managing, operating, and maintaining the Service Software for remote electronic access and use by the Licensee and its Authorized Users (“Hosted Services”) on an ongoing basis, except for:
(a) Scheduled Downtime in accordance with Section 6.2;
(b) Service downtime or degradation due to a Force Majeure Event;
(c) Any other circumstances beyond the reasonable control of the Licensor, including but not limited to the Licensee’s or any Authorized User’s use of Third Party Materials, misuse of Hosted Services, or use of the Services not in compliance with the express terms of this Agreement; and
(d) Any suspension or termination of the Licensee’s or any Authorized User’s access to or use of Hosted Services as a result of a Licensee Failure or as otherwise permitted by this Agreement.
3.2. Service and System Control. Except as otherwise expressly provided in this Agreement, as between the Parties:
(a) Licensor has and will retain sole control over the operation, provision, maintenance and management of the Services and Licensor`s Materials, including the: (i) Licensor Systems; (ii) selection, deployment, modification and replacement of the Service Software; and (iii) performance of maintenance, upgrades, corrections and repairs; and
(b) Licensee has and will retain sole control over the operation, maintenance and management of, and all access to and use of, the Licensee Systems, and sole responsibility for all access to and use of the Services and Licensor`s Materials by any Person by or through the Licensee Systems or any other means controlled by Licensee or any Authorized User, including any information, instructions or materials provided by any of them to Licensor or Subcontractors.
3.3. Changes. The Licensor reserves the right, at its sole discretion, to implement any changes to the Services and Licensor’s Materials that it deems necessary or beneficial in order to:
(a) Maintain or enhance (i) the quality or delivery of Licensor’s services to its customers, (ii) the competitive strength of or market for Licensor’s services, or (iii) the cost efficiency or performance of the Services; or
(b) Comply with applicable laws.
3.4. Subcontractors. The Licensor may, at its sole discretion, engage third parties to perform Services as subcontractors. Each such subcontractor shall be referred to as a “Subcontractor”.
4. AUTHORIZATIONS AND LICENSEE RESTRICTIONS
4.1. Subject to the Licensee’s payment of the Fees and compliance with all other terms and conditions of this Agreement, the Licensor hereby grants the Licensee non-exclusive, non-transferable access and usage rights, during the Term, to the Services and any Licensor Materials provided or made available by Licensor. This authorization is solely for use by and through Authorized Users in accordance with the conditions and limitations set forth in this Agreement. It is understood that this authorization is non-exclusive and, except as expressly permitted in Section 16.6, non-transferable.
4.2. Reservation of Rights. Except for the limited license in Section 4.1, nothing in this Agreement grants any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, Licensor`s Materials or Third Party Materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to (including all license under) any Intellectual Property Rights in or relating to, the Services, Licensor`s Materials and Third Party Materials are and will remain with Licensor and the respective rights holders in the Third Party Materials.
5. LICENSEE OBLIGATIONS
5.1. Licensee Systems and Cooperation. Throughout the Term of this Agreement, the Licensee shall:
(a) Ensure the setup, maintenance, and operation of all Licensee Systems necessary for accessing or using the Software or the Services, and maintain them in good repair;
(b) Provide all cooperation and assistance reasonably requested by the Licensor to facilitate the exercise of its rights and the fulfillment of its obligations under this Agreement;
(c) Furnish any additional information as requested by the Licensor.
5.2. Effect of Licensee Failure or Delay. Licensor is not responsible or liable for any delay or failure of performance caused in whole or in part by Licensee’s delay in performing, or failure to perform, any of its obligations under this Agreement (each, a “Licensee Failure”).
6. SERVICE LEVELS
6.1. Service Levels. Subject to the terms and conditions outlined in this Agreement, the Licensor will make commercially reasonable efforts to ensure that the Hosted Services are available for access and use by the Licensee and its Authorized Users over the Internet for at least 99% of the time during each calendar month throughout the Term, excluding periods of unavailability due to any of the following:
(a) Any act or omission by the Licensee or any Authorized User, or the use of Hosted Services by the Licensee or any Authorized User, using Access Credentials that do not strictly comply with the terms of this Agreement;
(b) Licensee Failure;
(c) Internet connectivity issues experienced by the Licensee or its Authorized Users;
(d) Force Majeure Events;
(e) Failures, interruptions, outages, or other issues with any software, hardware, system, network, facility, or other matter not provided by the Licensor under this Agreement;
(f) Scheduled Downtime; or
g) The disabling, suspension, or termination of the Services as outlined in Section 3.6.
It is important to note that service levels cannot be guaranteed, and the Licensor shall not be held liable to the Licensee or its Authorized Users in the event that Hosted Services become unavailable.
6.2. Scheduled Downtime. Licensor will use commercially reasonable efforts to: (a) schedule downtime for routine maintenance of Hosted Services between the hours of 12:00 a.m. and 6:00 a.m., Eastern Standard Time; and (b) give Licensee at least 24 hours prior notice of all scheduled outages of Hosted Services (“Scheduled Downtime”).
7. DATA BACKUP
7.1. The Licensor will use commercially reasonable efforts to maintain regular data backups of Licensee Data; provided however, that LICENSOR HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF LICENSEE DATA, EXCEPT IF OCCURED DUE TO THE LICENSOR’S DIRECT FAULT.
8. PRIVACY
8.1. Licensor`s Systems and Obligations. This Agreement incorporates by reference the Privacy Policy and the Agreement.
8.2. Licensee Control and Responsibility. Licensee has and will retain sole responsibility for:
(a) all Licensee Data (excluding data transmitted directly into the Licensor Systems by an Authorized User unaffiliated with Licensee), including its content and use, except as set forth in the Privacy Policy;
(b) all information, instructions and materials provided by or on behalf of Licensee or any Authorized User in connection with the Services;
(c) Licensee Systems;
(d) the security and use of Licensee’s and its Authorized Users’ Access Credentials; and (e) all access to and use of the Services and Licensor`s Materials directly or indirectly by or through the Licensee Systems or its or its Authorized Users’ Access Credentials, with or without Licensee’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
8.3. Access and Security. Licensee shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of Hosted Services; and (b) control the content and use of Licensee Data, including the uploading or other provision of Licensee Data for Processing by Hosted Services.
9. FEES AND PAYMENT TERMS
9.1. Fees. The Licensee shall remit to the Licensor the fees specified on the relevant page of the Licensor’s website https://aclservice.io (“Fees”) in accordance with the provisions outlined in this Section 9.
9.2. Fee Increases. The Licensor reserves the right to adjust Fees by providing written notice to the Licensee at least 30 days prior to the effective date of the Fee increase. Upon receipt of such notice, the Fees shall be deemed amended accordingly without further notice or consent; provided, however, that no Fee increases will be implemented during the Initial Term. In the event of a Fee increase, the Licensee may elect to terminate this Agreement effective as of the date of the Fee increase by providing written notice to the Licensor within 10 days of receiving notice of the Fee increase.
written notice to the Licensor within 10 days of receiving notice of the Fee increase. 9.3. Taxes. All Fees and other amounts payable by the Licensee under this Agreement exclude taxes and similar assessments. The Licensee bears responsibility for all sales, use, and excise taxes, as well as any other similar taxes, duties, and charges imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by the Licensee under this Agreement, except for taxes levied or imposed on the Licensor’s income.
9.4. Payment. All Fees shall be paid according to the order of the relevant page of the Licensor’s website https://aclservice.io , based on Licensor’s invoice to the Licensor’s payment account specified below herein. Licensee consents to Licensor retaining and using Licensee’s payment information for future invoices and as provided in this Agreement. Licensee agrees and acknowledges that Licensor and its third party vendors may retain and use Licensee’s payment information to facilitate the payments provided for in this Agreement. The Parties agree to promptly provide the other Party with written notice of any update of or changes to its payment information. All payments shall be in US dollars in immediately available funds, if Parties have not agreed otherwise.
10. CONFIDENTIALITY
10.1. Confidential Information. In connection with this Agreement, each Party (“Disclosing Party”) may disclose or make available Confidential Information to the other party (“Receiving Party”). Subject to Section 10.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s or its affiliates’ technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated or otherwise identified as “confidential”. Without limiting the foregoing, all Services and Licensor`s Materials, including the terms of this Agreement, are the Confidential Information of Licensor.
11. TERM AND TERMINATION
11.1. Initial Term. The initial term of this Agreement commences as of the Effective Date and, unless terminated earlier pursuant any of the Agreement’s express provisions, will continue in effect for one year (the “Initial Term”).
11.2. Renewal. This Agreement will automatically renew for additional successive one-year terms unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least 90 days prior to the expiration of the then-current term (each a “Renewal Term” and, collectively with the Initial Term, the “Term”).
11.3. Termination. In addition to Section 9.2 and Section 11.2:
(a) Licensor may terminate this Agreement, effective on written notice to Licensee, if Licensee: (i) fails to pay any amount when due hereunder, and such failure continues more than 30 days after Licensor’s delivery of written notice thereof; or (ii) breaches any of its obligations under Section 4.3 (Authorization Limitations and Restrictions) or Section 10 (Confidentiality).
(b) Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (i) is incapable of cure within three business days of suffering Party’s notice to the breaching Party of the breach and suffering Party’s intent to terminate this Agreement; or (ii) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach;
(c) Either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; and
(d) Either Party may terminate this Agreement upon 90 days written notice to the other for any commercial or business reason.
11.4. Effect of Expiration or Termination. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement (including Section 11.5 below):
(a) all rights, licenses, consents and authorizations granted by either Party to the other hereunder will immediately terminate;
(b) Licensor shall promptly cease all use of any Licensee Data or Licensee’s Confidential Information and erase all Licensee Data and Licensee’s Confidential Information from all systems Licensor controls; provided that, (i) for clarity, Licensors obligations under this Section 11.4(b) do not apply to any Resultant Data, (ii) Licensor and its affiliates may retain, use and disclose Licensee Data or Licensee Confidential Information as required by Law, and
(iv) Licensor and its affiliates may retain Licensee Data and Licensee Confidential Information in its regular backup, archived or disaster recovery systems or files;
(c) Licensee shall promptly cease all use of any Services or Licensor`s Materials and (i) promptly return to Licensor, or at Licensor written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on any Licensor Materials or Licensor’s Confidential Information; and (ii) permanently erase all Licensor`s Materials and Licensor’s Confidential Information from all systems Licensee directly or indirectly controls; provided that Licensee may retain Licensor Materials or Licensor’s Confidential Information in its regular backup, archived or disaster recovery systems or files, or as permitted by Section 10.4; an officer or director of Licensee shall, within 30 days from the effective date of the termination, certify in writing that all copies of the Software and Documentation have been returned, deleted and destroyed;
(d) Licensor may disable all Licensee and Authorized User access to Hosted Services and Licensor`s Materials;
(e) if Licensee terminates this Agreement pursuant to Section 11.3(b), Licensee will be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination and Licensor will refund to Licensee Fees paid in advance for Services that Licensor has not performed as of the effective date of termination; and
(f) if Licensor terminates this Agreement pursuant to Section 11.3(a) or Section 11.3(b), all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Licensee shall pay such Fees, together with all previously-accrued but not yet paid Fees, on receipt of Licensor’s invoice therefor.
11.5. Surviving Terms. The provisions set forth in the following sections, and any other rights or obligations of the Parties in this Agreement that, by their nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement.
12. REPRESENTATIONS AND WARRANTIES
12.1. Mutual Representations and Warranties. Each Party represents and warrants to the other Party that:
(a) it is duly organized, validly existing and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization;
(b) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this Agreement;
(c) the execution of this Agreement has been duly authorized by all necessary corporate or organizational action of such Party;
(d) its signatory to this Agreement is authorized to execute this Agreement on such Party’s behalf; and
(e) this Agreement constitutes the legal, valid and binding obligation of such a Party, enforceable against such Party in accordance with its terms.
12.2 Additional Licensee Representations, Warranties and Covenants. Licensee represents, warrants and covenants to Licensor that Licensee owns or otherwise has and will have the necessary rights and consents in and relating to the Licensee Data so that, as received by Licensor and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any Law. Licensee acknowledges and agrees that the Services provided by Licensor under this Agreement are administrative and technological in nature and that Licensor is not providing investment advice, or otherwise acting in an investment advisory capacity, to Licensee or any Authorized User.
12.3. DISCLAIMER OF WARRANTIES. EXCEPT FOR LICENSOR’S EXPRESS WARRANTIES SET FORTH IN SECTION 12.1, SECTION 12.2 AND SECTION 12.3, ALL SERVICES AND LICENSOR MATERIALS ARE PROVIDED “AS IS” AND LICENSOR HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND LICENSOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. LICENSOR DOES NOT PROVIDE ANY INVESTMENT ADVISORY SERVICE, DUE DILIGENCE, BROKERAGE, FINANCIAL MANAGEMENT, TAX, ACCOUNTING OR ANY OTHER PROFESSIONAL SERVICE, AND ANY ADVICE OR OTHER INFORMATION OBTAINED THROUGH LICENSOR’S PRODUCTS AND SERVICES WILL BE USED BY LICENSEE AND ITS AUTHORIZED USERS SOLELY AT THEIR OWN RISK. WITHOUT LIMITING THE FOREGOING, LICENSOR MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR LICENSOR MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET LICENSEE’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN LICENSEE AND THE THIRD PARTY OWNER OR DISTRIBUTOR OF THE THIRD PARTY MATERIALS.
13. INDEMNIFICATION
13.1. Licensor Indemnification. Subject to the limitations on liability in this Agreement, including as set forth in Section 14, Licensor shall indemnify, defend and hold harmless Licensee from and against any and all Losses incurred by Licensee arising out of or relating to any legal suit, claim, action or proceeding (each, an “Action”) by a third party (other than an affiliate of Licensee) to the extent that such Losses arise from any allegation in such Action that Licensee’s or an Authorized User’s use of the Services (excluding Licensee Data and Third Party Materials) in compliance with this Agreement infringes a Intellectual Property Right. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any:
(a) access to or use of the Services or Licensor`s Materials in combination with any hardware, system, software, network or other materials or service not provided or authorized in writing by Licensor;
(b) modification of the Services or Licensor`s Materials other than: (i) by or on behalf of Licensor; or (ii) with Licensor’s written approval in accordance with Licensor’s written specification;
(c) failure to timely implement any modifications, upgrades, replacements or enhancements made available to Licensee by or on behalf of Licensor; or
(d) act, omission or other matter described in Section 13.2(a)-(g), whether or not the same results in any Action against or Losses by any Licensor Indemnitee.
13.2. Licensee Indemnification. Licensee shall indemnify, defend and hold harmless Licensor and its Subcontractors and affiliates, and each of its and their respective officers, directors, employees, agents, Representatives, successors and assigns (each, a “Licensor Indemnitee”) from and against any and all Losses incurred by such Licensor Indemnitee in connection with any Action by a third party that arises out of or relates to any:
(a) Licensee Data, including any Processing of Licensee Data by or on behalf of Licensor in accordance with this Agreement;
(b) securities offering facilitated by Licensee or its Representatives, including any and all data and documentation related to such offering, the due diligence related to such offering, and/or the determination of suitability or qualification of a prospective investor for an offering;
(c) any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Licensee or any Authorized User, including Licensor’s compliance with any specifications or directions provided by or on behalf of Licensee or any Authorized User, to the extent prepared without any contribution by Licensor;
13.3. Indemnification Procedure. Each Party shall promptly notify the other Party in writing of any Action for which such Party believes it is entitled to be indemnified pursuant to Section 12.1 or Section 13.2, as the case may be. The Party seeking indemnification (the “Indemnitee”) shall cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense.
13.4. Mitigation. If any of the Services or Licensor`s Materials are, or in Licensor’s opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third party Intellectual Property Right, or if Licensee’s or any Authorized User’s use of the Services or Licensor`s Materials is enjoined or threatened to be enjoined, Licensor may, at its option:
(a) at Licensor’s sole cost and expense, obtain the right for Licensee to continue to use the Services and Licensor`s Materials materially as contemplated by this Agreement;
(b) at Licensor’s sole cost and expense, modify or replace the Services and Licensor Materials, in whole or in part, to seek to make the Services and Licensor Materials (as so modified or replaced) non-infringing, while providing substantially equivalent features and functionality, in which case such modifications or replacements will constitute Services and Licensor`s Materials, as applicable, under this Agreement; or
14. LIMITATIONS OF LIABILITY
14.1. EXCLUSION OF DAMAGES. LICENSOR AND ITS LICENSORS, SERVICE LICENSORS AND SUPPLIERS SHALL NOT BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTY, MISREPRESENTATIONS OR OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. BOTH PARTIES UNDERSTAND AND AGREE THAT THE REMEDIES AND LIMITATIONS HEREIN ALLOCATE THE RISKS OF PRODUCT AND SERVICE NONCONFORMITY BETWEEN THE PARTIES AS AUTHORIZED BY LAW. THE FEES HEREIN REFLECT, AND ARE SET IN RELIANCE UPON, THIS ALLOCATION OF RISK AND THE EXCLUSION OF CONSEQUENTIAL DAMAGES SET FORTH IN THIS AGREEMENT.
14.2. CAP ON MONETARY LIABILITY. IN ANY EVENT, THE COLLECTIVE AGGREGATE LIABILITY OF LICENSOR UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTY, MISREPRESENTATIONS OR OTHERWISE, SHALL BE LIMITED TO THE AMOUNT PAID TO LICENSOR BY LICENSEE UNDER THIS AGREEMENT. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
15. FORCE MAJEURE
15.1. No Breach or Default. In no event will either Party be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any payment obligation) when and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either Party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of 30 days or more.
16. MISCELLANEOUS
16.1. Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
16.2. Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement (“Notices”) have binding legal effect only if in writing (including email) and addressed to the Party as follows (or to such other address or such other Person that the Party may designate from time to time in accordance with this Section 16.2):
(a) when received, if delivered by hand, with signed confirmation of receipt;
(b) when received, if sent by a nationally recognized overnight courier, signature required; (c) on the third day after the date mailed by certified or registered mail, return receipt requested, postage prepaid; or
(c) on the following business day if delivered by email.
16.3. Interpretation. The Parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. Further, the headings used in this agreement are for convenience only and are not intended to be used as an aid to interpretation.
16.4. Entire Agreement. This Agreement constitutes the sole and entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes and merges all prior and contemporaneous proposals, understandings, agreements, representations and warranties, both written and oral, between the Parties relating to such subject matter.
16.5. Assignment. Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Licensor’s prior written consent. No delegation or other transfer will relieve Licensee of any of its obligations or performance under this Agreement.
16.6. No Third Party Beneficiaries. This Agreement is for the sole benefit of the Parties and, subject to Section 13 and Section 16.6, their respective successors and assigns, and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
16.7. Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated by this Agreement be consummated as originally contemplated to the greatest extent possible.
16.8. Waiver. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
Contact Information:
If you have any questions regarding this Agreement, please contact us at info@aclservice.io
