AkkenCloud Online Service Agreement – Terms and Conditions
These Terms and Conditions (the “Agreement) between AkkenCloud and the Customer (“Customer”) are made as of the effective date stated on the signature page (“Effective Date”).
1. License Grant
- AkkenCloud hereby grants the Customer a non-exclusive, non-transferable (except as provided below) license during the Term (as defined below) to access and use the AkkenCloud online services as indicated in the Financial and Business Terms set forth in the AkkenCloud Proposal (“Financial and Business Terms”). Customer may use the Service for its internal business purposes only. The Service may include content or information in text, graphic or other media formats supplied by AkkenCloud (collectively “Content”).
2. System Administrator; Number of Authorized Users
- Customer is obligated to appoint an administrator (“System Administrator”) who will be authorized to use applicable
management features of the Service and otherwise act for it under this Agreement. Customer will be bound by all actions of the System Administrator. Customer may appoint and change its System Administrator by written notice. - Customer is initially authorized to allow use of the Service by the number of individual users (“Users”) stated as the minimum in the Financial and Business Terms in the Agreement or as otherwise agreed in writing. Customer, by its authorized System Administrator, may add to the number of Users by contacting AkkenCloud customer support organization (“Customer Success”) by email or phone or by utilizing applicable management features of the Service.
- The Service access provided to an individual User may not be shared or used by more than one individual. User licenses may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Service. Any user that is active for 5 or more days in a month will be counted as an active user for that month.
3. Customer Contact Information and Billing
- Customer represents and warrants that all information provided to AkkenCloud for the purpose of the Agreement or in connection with the Service is and at all times will be accurate, up-to-date, and complete. Customer agrees to provide AkkenCloud with complete and accurate billing and contact information as AkkenCloud may reasonably require by email or written notice from time to time. Customer agrees to update this information promptly by utilizing applicable management features of the Service no later than fifteen (15) days after any change.
- One-time fees, annual recurring fees, professional services fees, and the first month of minimum monthly subscription fees will be charged and paid when agreement is signed by Customer.
- Any user or service fees added to the agreement will be added to the agreement term for the remainder of the contract, will be prorated for the remainder of the then current term and are due in full on the first day of the month following activation.
- Any users or services that are enabled for five (5) or more days in any month will incur the monthly user license fee.
- The quote provided on the financial and business terms, based on number of users and other services will be set as the minimum monthly fee Changes to the minimum fees must be submitted in writing no less than 30 days prior to the renewal term.
- There is no refund provided if the total number of users or services drops below the minimum annual amount.
- Subscriptions include unlimited storage space for Front Office Edition, Back Office Edition and Unlimited Edition.
- Customer agrees to upload only information that is relevant to their business into the AkkenCloud system and not any personal or other information like Video’s etc that may take more than reasonable amount of storage space than any of other AkkenCloud customers using the storage space on an average basis. In that case, AkkenCloud will notify customer and will give 10 days time to remove such information from the AkkenCloud system. If the customer ignores AkkenCloud notifications, after 10 days AkkenCloud will delete such information to free the storage space.
- Pricing may be adjusted and additional amounts may be due as agreed by the parties or stated in the Terms and Conditions.
4. Payment
- Customer agrees to pay fees and charges due under the Agreement (“Fees”). Fees are initially set at the rates stated in the Financial and Business Terms. After the end of the first year or the initial term of the Agreement (measured from the Effective Date) Fees for the Service will be as stated in AkkenCloud’s applicable pricing list (“Price List”) as issued from time to time or listed on its web site from time to time. Pricing under the Financial and Business Terms or the Price List, as applicable, is termed the “Applicable Pricing.” Subscription and regular invoicing will begin 90 days after the contract is fully executed or at go-live, whichever comes first.” Fully executed is defined as when both parties have signed the contract.
- AkkenCloud will invoice annually, or as otherwise specified in the Business and Financial Terms, for use of the Service at the beginning of the term. Amounts due are exclusive of all applicable taxes, levies, or duties, and Customer will be responsible for payment of all such amounts. If Customer believes that any specific charge under the Agreement is incorrect, in order to obtain a credit, Customer must contact AkkenCloud in writing within ten (10) days of invoice date setting forth the nature and amount of the requested correction; otherwise invoices are final.
- Except as provided for the Initial Fees or as otherwise agreed in writing, Customer agrees to pay all fees or other amounts due under the Agreement (“Fees”) upon receipt of AkkenCloud’s invoice. For customers paying via credit card, debit card, or ACH/eCheck processing, customers will be charged when invoices are generated and a sales receipt with the details will be emailed. All payments made under the Agreement will be in United States dollars. Customer’s account will be considered delinquent (in arrears) if payment in full is not received by the applicable due date or if ACH/eCheck, credit card or debit card charges are not accepted/declined.
- If Customer’s account becomes delinquent or Customer otherwise breaches the Agreement, in addition to other remedies that may apply, AkkenCloud may, at its option, suspend and/or terminate Customer’s access to the Service and/or terminate the Agreement, upon five (5) days notice to Customer. Notice under this provision may be given by any method permitted in the Agreement including email sent to the Customer’s address on file. Customer agrees to pay delinquent payments with interest at the rate of 1.5 percent per month on any outstanding balance, or the maximum permitted by law. Customer agrees to pay all applicable Fees, including Fees for all Users then authorized during any period of suspension. If the customer is in default of the agreement from such a breach, installments will be defaulted to payable upon receipt of invoice to reinstate the account.
- Customers who establish accounts with AkkenCloud with payment terms of ACH/echeck, debit, or credit cards are required to maintain valid payment information with AkkenCloud. If Customer does not maintain valid payment method on file, then Customer will be considered in Breach of this agreement.
5. Training
- During the Term, AkkenCloud will use commercially reasonable efforts to provide Training and Support as stated in the Financial and Business Terms or as otherwise agreed in writing.
6. Support
- All users are required to attend user training in order to receive support.
- The total number of professional service hours available is specified in the subscription agreement.
- Additional professional service hours can be purchased at the rate specified in the subscription agreement.
- Once a user has participated in one of AkkenCloud’s user training programs, the trained individual has the following Support available to them.
- Email and Live phone support from AkkenCloud’s Customer Success Team that is available Monday – Friday, 8:30 AM – 5:30 PM Eastern Time throughout the agreement term, excluding AkkenCloud company holidays.
- The Customer must designate an administrative contact to be the liaison between Customer and AkkenCloud for all technical and user support. This designated AkkenCloud Customer System Administrator is required to complete AkkenCloud System Administrator training in order to receive ongoing system administration support.”
7. Additional Services
- Customer may retain AkkenCloud to perform professional services or provide other services (“Additional Services”) as the parties may agree upon in writing in the form of a work order or other writing (“Additional Services Order”) that may be included with this Agreement or agreed at another time. AkkenCloud will use reasonable efforts to carry out the Additional Services stated in the Additional Services Order. Except as the parties otherwise agree in a Additional Services Order, Additional Services and the results thereof are made available “AS IS.”
- Unless otherwise agreed in writing in the Additional Services Order, Additional Services are provided by AkkenCloud on a time and materials basis at AkkenCloud’s then applicable rates and subject to such advance payment as AkkenCloud may require. Maintenance and support of code or functionality created by means of Additional Services will likewise be on an Additional Services Order basis under this Section unless otherwise agreed in writing. The code and functionality made or provided under this Section and all interests therein, including copyrights, will be AkkenCloud’s property. Access to the results of Additional Services will be available as part of the Service during the Term unless otherwise agreed in writing. Unless otherwise agreed in an Additional Services Order, AkkenCloud may bill for Additional Services on a weekly or monthly basis, at its discretion.
- The terms of a Customer purchase order, acknowledgement, other printed or computer forms, or similar documents will not be effective to alter these terms or add additional obligations of AkkenCloud.
8. Data Migration
- Where Additional Services under this Agreement includes processing of data received from the Customer (“Conversion Data”) for migration purposes, Customer agrees to provide the applicable customer data and information required for processing within ten (10) days of the Effective Date or, if later, from the date of the applicable Additional Services Order.
- AkkenCloud will use Conversion Data solely for the purpose of processing of data for such migration purposes. AkkenCloud will use reasonable efforts to migrate the applicable Data per the criteria agreed upon in writing. Once initial processing of such Conversion Data is completed and the resulting data (“Processed Data”) has been presented to Customer, Customer will have a period (“Review Period”) of seven (7) days from the date of AkkenCloud’s presentation of the data to review the Processed Data and request any modifications. During this seven (7) day period, Customer may request reasonable modifications to the processing criteria. AkkenCloud will then resubmit the resulting Processed Data for review and Customer will have an additional Review Period of seven (7) days. Any further processing requested by Customer will be subject to payment to AkkenCloud on a time and materials basis at AkkenCloud’s applicable rates and terms.
- When data conversion occurs at the beginning of the term of the Agreement, in case of any delay or delays by Customer that are within Customer’s reasonable control in providing Conversion Data together with appropriate information or in reviewing Processed Data, AkkenCloud may, at its option, initiate, bill for and collect an hourly fee to cover the additional time expended by AkkenCloud as a result of such delay. The hourly rate is $150.
9. Customer and User Responsibilities
- Customer is responsible for all activities on and all usage of the Service, including all acts and omissions by its Users.
Customer will ensure that its and its Users’ use of the Service complies with all applicable local, state, national and foreign laws, treaties and regulations, including those related to data privacy, “spam” (unsolicited mail), data exports, and the transmission of technical or personal data. - AkkenCloud does not claim to own any data, information or material that Customer or its Users submits to the Service (“Customer Data”). The Customer has and will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness or all Customer Data, and to provide itself with the intellectual property rights or other applicable rights to use all Customer Data. Customer will ensure that all content, information and data that it and its Users include in or post in the Service is legally compliant and excludes any obscene, threatening, defamatory or infringing matter.
- Customer is responsible for maintaining the security and confidentiality of all User usernames and passwords. AkkenCloud is entitled to treat all communications that are identified by means of such usernames and passwords as authorized by Customer.
- Customer agrees to notify AkkenCloud immediately of any unauthorized use of any password or account or any other known or suspected breach of security.
10. Restrictions
- Customer will not use or exploit the Service except as expressly permitted in the Agreement. Customer agrees not to license, sublicense, sell, resell, transfer, rebrand, assign, or redistribute the Service. Customer will not make the Service available to third parties other than duly authorized Users. Customer agrees not to
(i) modify or make derivative works based upon the Service or the Content;
(ii) create Internet links to the Service or “frame” or “mirror” the Service or Content; or
(iii) reverse engineer or access or use the Service to
(a) build a competitive product or service,
(b) build a product using similar ideas, features, functions or graphics of the Service, or
(c) copy any ideas, features, functions or graphics of the Service.
11. Handling, Retention and Disposal of Customer Data
- Customer grants AkkenCloud a non-exclusive license to use, copy, store, transmit and display Customer Data to the extent reasonably necessary to provide and maintain the Service for Customer’s use.
- AkkenCloud agrees not to use the Customer Data for any purpose other than to provide the Service to Customer and its Users, provided that AkkenCloud may aggregate anonymous statistical data regarding use and functioning of its system by its various Users. Such aggregated statistical data will be the sole property of AkkenCloud.
- AkkenCloud agrees to use commercially reasonable security measures to protect Customer Data against unauthorized disclosure or use. AkkenCloud’s security policies in effect from time to time can be accessed on AkkenCloud’s web site.
- AkkenCloud has no obligation to retain, and may delete, Customer Data that remains in AkkenCloud’s possession or control more than thirty (30) days after termination. In the event that the Agreement is terminated for any reason other than Customer’s material breach, AkkenCloud will make available a Full/Final backup copy of the Customer Data in AkkenCloud’s standard format available to Customer on Customer’s written request. To obtain a back up copy of Customer Data, Customer must make the request by email or in written form no later than 30 days after the termination date and the account must not have any remaining balance due. In case of termination for Customer’s uncured material breach, AkkenCloud may, at its option, dispose of the Customer Data.
- If AkkenCloud is unable to continue in business or permanently discontinues the operation of the Service for financial reasons or any other reason, AkkenCloud will promptly provide Customer with a copy of the Customer Data in AkkenCloud’s standard format 30 days prior to the service stop date.
- At end of every three months of the Term, upon written request (which may be by email), AkkenCloud will make available to Customer for download a Safekeeping copy of the Customer Data in AkkenCloud’s standard data backup format provided that the customer’s account does not have any past due invoices.
12. Privacy
- AkkenCloud’s privacy policy may be viewed on AkkenCloud’s web site. AkkenCloud reserves the right to modify its policy in its reasonable discretion from time to time.
13. AkkenCloud Ownership
- AkkenCloud and its suppliers retain all rights in the Service and the Content. The Agreement grants no ownership rights to Customer. No license is granted to Customer except as to use of the Service as expressly stated herein. The AkkenCloud name, the AkkenCloud logo, and the product names associated with the Service are trademarks of AkkenCloud, and they may not be used without AkkenCloud’s prior written consent. AkkenCloud will have the unlimited right to use and exploit any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer.
14. Service Level Warranty
- The Service will be available 99.7% of the time in any given month (excluding any scheduled maintenance). In case of availability below this level, Customer shall be entitled to receive, as Customer’s sole and exclusive remedy, a credit, usable against future Fees only, equal to a percentage of the current month’s equivalent User Fees, as stated in the following table (a current month’s User Fees is equal to the Total Annual Fees provided in the Financial and Business Terms divided by 12). To obtain such credit, Customer is obligated to notify AkkenCloud of the non-conformity to this standard within thirty (30) days after it occurs.
| Availability Percentage | Percentage of Month’s Service credited |
|---|---|
| 99.6 % to 99.0% | 5% |
| 98.9 %to 98.5% | 10% |
| 98.4% to 98.0% | 20% |
| 97.9% to 97.5% | 30% |
| 98.4% to 98.0% | 20% |
| Below 97.5% | 50% |
- AkkenCloud will provide at least twenty-four (24) hours advance notice prior to any scheduled maintenance or service upgrades.
15. Warranties
- AkkenCloud warrants that the Service will conform in all material respects to the function description in its online knowledge base(“Knowledge Base”) as issued and updated from time to time (currently located at https://support.akkencloud.com/support/solutions). As Customer’s sole and exclusive remedy for breach of this warranty, AkkenCloud will use commercially reasonable efforts to cure any material non-conformities that Customer may bring to AkkenCloud’s attention in writing in a reasonable time frame and/or to make changes to the Knowledge Base.
- Each party represents and warrants that it has the legal power and authority to enter into the Agreement.
16. Disclaimers and Limitations
- THE WARRANTIES EXPRESSLY STATED IN THE AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY VENDOR. THERE ARE NO OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER ASSUMES SOLE RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE IS SUITABLE FOR CUSTOMER’S PURPOSES. VENDOR DOES NOT WARRANT THAT USE OF THE SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED. AKKENCLOUD WILL NOT BE LIABLE FOR THE DELETION, CORRECTION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY CUSTOMER DATA EXCEPT IN THE CASE OF VENDOR’S OWN NEGLIGENCE OR INTENTIONALLY WRONGFUL ACTS. VENDOR IS NOT RESPONSIBLE FOR SOFTWARE INSTALLED OR USED BY CUSTOMER OR USERS OR FOR THE OPERATION OR PERFORMANCE OF THE INTERNET.
- Except with regard to Customer’s payment obligations and with regard to indemnification obligations or Customer’s material breach of Section 8, in no event will either party’s aggregate liability exceed the license fees due for the twelve (12) month period measured by the annual payment obligation at the time of the event or circumstance giving rise to such claim. In no event will AkkenCloud be liable for any indirect, special, incidental, consequential damages of any type or kind (including, without limitation, loss of data, revenue, profits, use or other economic advantage) except in the case of AkkenCloud’s own negligence or intentionally wrongful acts.
- The Service may include gateways, links or other functionality that allows Customer and/or Users to access third party services (“Third Party Services”) and/or third party content and materials (“Third Party Materials”). AkkenCloud does not supply and is not responsible for any Third Party Services or Third Party Materials, which may be subject to their own licenses, end-user agreements, privacy and security policies, and/or terms of use. VENDOR MAKES NO WARRANTY AS TO THIRD PARTY SERVICES OR THIRD PARTY MATERIALS.
- The Service may be subject to limitations, delays and other problems inherent in the use of the Internet and electronic communications.
17. Publicity
- Subject to prior verbal and/or written approval, not to be unreasonably withheld, AkkenCloud may: (i) use in advertising, publicity, or otherwise, Customer’s name, or any affiliate or subsidiary of Customer, or any partner, or employee of Customer, or any trade name, trademark, trade device, service mark, domain name, symbol or any abbreviation, contraction or simulation thereof owned by Customer or its affiliates or subsidiaries, (ii) represent, directly or indirectly, that any product or any services provided by AkkenCloud has been approved or endorsed by Customer, or (iii) develop material on its own and use for advertising, media releases, marketing or educational purposes which identify Customer.
18. Confidentiality
- Each party may supply non-public information to the other party regarding its technologies, methodologies, system functions, application interfaces and/or business methods (collectively “Confidential Information”).
- Neither party will use the other party’s Confidential Information except as reasonably required for the performance of this Agreement. Each party will hold in confidence the other party’s Confidential Information by means that are no less restrictive than those used for its own confidential materials. Each party agrees not to disclose the other party’s Confidential Information to anyone other than its employees or permitted subcontractors who who are bound by confidentiality obligations and who need to know the same to perform such party’s obligations here under.
- Upon termination or expiration of this Agreement, except as otherwise agreed in writing or otherwise stated in this Agreement, each party will, upon the request of the disclosing party, either: (i) return all of such Confidential Information of the disclosing party and all copies thereof in the receiving party’s possession or control to the disclosing party; or (ii) destroy all Confidential Information and all copies thereof in the receiving party’s possession or control.
19. Indemnification
AkkenCloud will defend, indemnify, and hold Customer (and its officers, directors, employees and agents) harmless from and against all costs, liabilities, losses, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) arising from any third party claim, suit, action, or proceeding arising from the infringement of any United States copyright, patent, trademark, or misappropriation of a trade secret by the Service or AkkenCloud Content (other than that due to Customer Data). In case of such a claim, AkkenCloud may, in its discretion, procure a license that will protect Customer against such claim without cost to Customer, replace the Service with a non-infringing Service, or if it deems such remedies not practicable, AkkenCloud may terminate the Service and the Agreement without fault, provided that in case of such a termination, Customer will receive a pro-rata refund of the license fees (if any) prepaid for use of the Service not yet furnished as of the termination date. THIS SECTION STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR INFRINGEMENT OR CLAIMS ALLEGING INFRINGEMENT.
- Customer will defend, indemnify, and hold AkkenCloud (and its officers, directors, employees and agents) harmless from and against all Losses arising out of or in connection with a claim, suit, action, or proceeding by a third party (i) alleging that the Customer Data or other data or information supplied by Customer infringes the intellectual property rights or other rights of a third party or has caused harm to a third party or (ii) arising out of breach of Sections 7 or 8 above.
- Customer will defend, indemnify, and hold AkkenCloud (and its officers, directors, employees and agents) harmless from any expense or cost arising from any third party subpoena or compulsory legal order or process that seeks Customer Data and/or other Customer-related information or data, including, without limitation, prompt payment to AkkenCloud of all costs (including attorneys’ fees) incurred by AkkenCloud as a result. In case of such subpoena or compulsory legal order or process, Customer also agrees to pay AkkenCloud for its staff time in responding to such third party subpoena or compulsory legal order or process at AkkenCloud’s then applicable hourly rates.
- In case of any claim that is subject to indemnification under the Agreement, the party that is indemnified (“Indemnitee”) will provide the indemnifying party (“Indemnitor”) reasonably prompt notice of the relevant claim. Indemnitor will defend and/or settle, at its own expense, any demand, action, or suit on any claim subject to indemnification under the Agreement. Each party will cooperate in good faith with the other to facilitate the defense of any such claim and will tender the defense and settlement of any action or proceeding covered by this Section to the Indemnitor upon request. Claims may be settled without the consent of the Indemnitee, unless the settlement includes an admission of wrongdoing, fault or liability.
20. Term and Termination
The term of the Agreement will initially be a minimum of one (1) year or more as stated in the Financial and Business Terms from the Effective Date (the “Initial Term”) and will be automatically extended for additional one-year terms (each, a “Renewal Term”) thereafter unless terminated as provided for in the Agreement. No less than ninety (90) days before the end of the Initial Term or any Renewal Term thereafter, either party may give the other party written notice of termination, in which case the Agreement will terminate at the end of the current Initial Term or Renewal Term, as the case may be.
Either party may terminate the Agreement and the license granted herein, in the event that the other party materially breaches the Agreement and the breach remains uncured upon the expiration of thirty (30) calendar days after notice to the other party, provided that for breaches of the Customer’s payment obligations, the applicable cure period shall be ten (10) calendar days.
- Any termination by AkkenCloud for the Customer’s uncured material breach or any termination by Customer prior to the end of the Initial Term or the current Renewal Term except due to AkkenCloud’s material breach, as applicable, will subject Customer to an early termination fee (i.e. an acceleration of amount due) to be calculated as any outstanding amount due for the then current contract term, or, if greater, any applicable minimum amount. If such termination occurs during the Initial Contract Term, then any Setup Cost Discounts offered in the Business and Financial Terms section of the Agreement become payable to AkkenCloud as part of the early termination fee.
- In case of Customer’s material breach, AkkenCloud will be entitled to, and Customer agrees to pay, AkkenCloud’s expenses of collection and enforcement under the Agreement, including its reasonable attorneys’ fees and court costs. In addition, AkkenCloud reserves the right to impose a reconnection fee in the event Services to Customer are suspended and Customer thereafter requests access to the Service.
- The following provisions will survive termination: all definitions, Customer’s accrued financial obligations, the license to Customer Data to the extent reasonable for AkkenCloud’s discharge of its post-termination obligations, and the following Sections and paragraphs: 8, 11, 14, 16, 17, 18e, 19 and 22 and any provision that recites that it survives.
21. Notice
AkkenCloud may give notice by means of a general notice on the Service, e-mail to Customer’s designated e-mail address on record in AkkenCloud’s account information, or by written communication sent by a nationally recognized overnight courier service (“Courier”), first class mail or pre-paid post to Customer’s address on record in AkkenCloud’s account information. Such notice will be deemed to have been given upon the expiration of forty-eight (48) hours after mailing or posting or one (1) hour after sending by email. Email notice under the Agreement will be deemed given if addressed to the email address currently on file.
- Customer may give notice to AkkenCloud (such notice will be deemed given when received by AkkenCloud) at any time by any of the following: letter sent by confirmed facsimile to AkkenCloud at the following fax number: (603) 386-6161; letter delivered by Courier or first class postage prepaid mail to AkkenCloud at the following addressee: AkkenCloud, Inc., 98 Spit Brook Road, Suite 402, Nashua, NH 03062, attention: Contracts & Billing.
- A party may, by giving notice, change its applicable address, email, or other contact information.
22. Assignment
The Agreement may not be assigned by Customer without the prior written approval of AkkenCloud, which will not be unreasonably withheld, but may be assigned by AkkenCloud to (i) a parent or subsidiary, (ii) an acquirer of all or substantially all of AkkenCloud’s assets involved in the operations relevant to the Agreement, or (iii) a successor by merger, other combination or change of control. Any purported assignment in violation of this Section will be void. The agreement may be enforced by and is binding on permitted successors and assigns.
23. Legal Compliance
Customer agrees to comply with all applicable laws with regard to use of the Service, including, without limitation, laws regulation privacy and export controls.
- If Customer uses the Service from outside the United States of America, Customer is solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries.
24. Miscellaneous
The Agreement will be interpreted fairly in accordance with its terms, without any strict construction in favor of or against either party and in accordance with the laws of the New Hampshire and applicable US federal law. The state and federal courts located in New Hampshire USA will have exclusive jurisdiction and venue over any dispute or controversy arising from or relating to the Agreement or its subject matter.
- If any provision of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) will be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
- AkkenCloud reserves the right to change the terms of this Agreement on thirty (30) days notice. If Customer does not wish to accept any such change, it may notify AkkenCloud in writing within such thirty (30) day period. Upon receipt of such a notice, AkkenCloud, in its discretion, may continue the existing form of agreement in place or may terminate this Agreement without fault upon a further notice of no less than ten (10) days.
- No joint venture, partnership, employment, or agency relationship exists between Customer and AkkenCloud as a result of the Agreement or use of the Service. The failure of AkkenCloud to enforce any right or provision in the Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by AkkenCloud in writing. Except with regard to the obligation of Customer to make payments, if the performance of the Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of such party, that party will be excused from such to the extent that it is prevented, hindered or delayed by such causes. AkkenCloud reserves the right to make changes in the Service from time to time.
- The Agreement comprises the entire agreement between Customer and AkkenCloud and supersedes all prior or
contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. No amendment to or modification of the Agreement will be binding unless in writing and signed by an authorized representative of each party. This Agreement may be accepted and agreed on Customer’s behalf by Customer’s faxing or otherwise delivering the signature page to AkkenCloud. The AkkenCloud Proposal and the Standard Data Migration documents are hereby incorporated into the Agreement by this reference.
