1. USE REQUIREMENTS AND RESTRICTIONS
PLEASE READ THESE USE REQUIREMENTS AND RESTRICTIONS CAREFULLY. BY ACCESSING OR USING THE ACHIKO WEB SITE, SOFTWARE OR SERVICES, YOU AGREE TO BE BOUND BY THE USE REQUIREMENTS AND RESTRICTIONS DESCRIBED HEREIN AND ALL TERMS INCORPORATED BY REFERENCE. IF YOU DO NOT AGREE WITH ALL OF THE USE REQUIREMENTS AND RESTRICTIONS DESCRIBED HEREIN, DO NOT USE THE ACHIKO WEB SITE, SOFTWARE OR SERVICES.
These Use Requirements and Restrictions (this “Agreement”) apply to: (a) your access to, and use of, the Web site of Achiko AG (“Company”, “we”, or “our”), located at www.achiko.com (the “Site”); (b) the services provided by Company; and (c) the software provided by the Company. This Agreement does not alter in any way the terms or conditions of any other agreement you may have with Company. If you are using the Site, the Achiko services or the Achiko software on behalf of any entity, you represent and warrant that you are authorized to accept the terms and conditions set forth in this Agreement on such entity’s behalf, and that such entity agrees to indemnify you and Company for violations of this Agreement.
Company reserves the right to change or modify any of the terms and conditions contained in this Agreement, at any time and in its sole discretion. Any changes or modification will be effective immediately upon posting of the revisions on the Site, and you waive any right you may have to receive specific notice of such changes or modifications. Your continued use of this Site, the Achiko software or the Achiko services following the posting of changes or modifications will confirm your acceptance of such changes or modifications. Therefore, you should frequently review this Agreement and applicable policies from time-to-time to understand the terms and conditions that apply to your use of the Site. If you do not agree to the amended terms, you must stop using the Site, the Achiko software and the Achiko services.
1.1. Services Provided. Subject to the terms and conditions of this Agreement, we may provide you with the Site, as well as with certain connectivity software and services as may be made available by us from time to time.
1.2. Prohibited Actions. You shall comply with all applicable laws and regulations and refrain from violating any third-party rights in connection with this Agreement. Without limiting the generality of the foregoing, you must not: (a) use the Site, Achiko software or Achiko services to, or in any way that would, violate any applicable law or regulation, any contract (including, but not limited to, wireless service contracts), or any other third-party rights; (b) violate, interfere with, damage or compromise the Site , Achiko software or Achiko service, or any other person’s copy of the Achiko software or their mobile phone; (c) remove any proprietary notices from the Achiko software or any copies thereof; (d) cause, permit or authorize the modification, creation of derivative works, translation or copying of the Achiko software; (e) sell, sublicense, assign, rent, lease, act as a service bureau or grant rights in the Site, Achiko software or Achiko services to any other person except with our prior written consent and/or pursuant to the provisions of Section 5 regarding our Merchant Program; (f) decompile, disassemble, reverse engineer or hack the Site or the Achiko software, or circumvent any encryption, technical protection or security methods implemented by us with respect to the Site or Achiko software and/or data transmitted, processed or stored by us or by other users, except to the extent expressly permitted by mandatory provisions of applicable law that cannot be contractually derogated from, but then only with 30 days’ prior written notice to us; (g) attempt to do anything or induce or enable others to do or attempt to do anything prohibited by this Section 1.2.
2. INTELLECTUAL PROPERTY RIGHTS
2.1. Limited License to Achiko software. Subject to your compliance with the terms and conditions set forth in this Agreement, we grant you a personal, limited, non-exclusive, non-sublicenseable, non-assignable, royalty-free license to download, install and use the Achiko software on one mobile phone for your sole use and for the sole purpose of using the Achiko services and not for any other purpose.
2.2. Retention of Rights. We retain all intellectual property rights (including, but not limited to, any and all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing) embodied in or relating to the Site, the Achiko software and the services, the design or operation thereof, any modification or enhancements thereto and any other technical information relating to the provision thereof (collectively, “Intellectual Property Rights”). You must not do anything that would jeopardize, damage, limit or interfere with our Intellectual Property Rights or our interest in them. No license is granted under this Agreement except the limited licenses pursuant to Sections 4.1 and 5.2 here of.
3. DISCLAIMER OF WARRANTY
THE SITE, THE ACHIKO SOFTWARE, THE ACHIKO SERVICES AND THE THIRD PARTY CONTENT ARE PROVIDED “AS IS”, AND WE DO NOT REPRESENT OR WARRANT THAT THE SITE, THE ACHIKO SOFTWARE OR THE ACHIKO SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, ERROR-FREE OR WILL OPERATE WITHOUT DATA LOSS, NOR DO WE WARRANT ANY PARTICULAR QUALITY OF THE WEB SITE, SOFTWARE OR SERVICES. WE DISCLAIM ANY AND ALL OTHER WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE SITE, THE ACHIKO SOFTWARE, THE ACHIKO SERVICES OR THE THIRD PARTY CONTENT WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL (A) WARRANTIES OF MERCHANTABILITY, (B) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT WE KNOW, WE HAVE REASON TO KNOW, WE HAVE BEEN ADVISED OR WE ARE OTHERWISE AWARE OF ANY SUCH PURPOSE), (C) WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE, AND (D) WARRANTIES THAT THE SITE, THE ACHIKO SOFTWARE OR THE ACHIKO SERVICES WILL OPERATE WITHOUT INTERRUPTION OR ERROR. YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE RELIED ON NO WARRANTIES.
4. LIMITATION OF LIABILITY
4.1. LIMITED LIABILITY.
NEITHER WE NOR OUR RELATED PARTIES ARE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, ANY INTERRUPTION OF BUSINESS, LOSS OF OR DAMAGE TO BUSINESS OR REPUTATION, LOSS OF OPPORTUNITY, LOSS OF ADVANTAGE, LOSS OF USE OF ANY SOFTWARE OR DATA, LOSS OF USE OF ANY MOBILE PHONE OR OTHER EQUIPMENT, LOSS OF USE OF THE SYSTEM ON WHICH THE SITE, ACHIKO SOFTWARE OR ACHIKO SERVICES ARE USED, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SITE, THE ACHIKO SOFTWARE, THE ACHIKO SERVICES OR THIRD PARTY CONTENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OR ARE OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT SHALL OUR AND OUR RELATED PARTY’S TOTAL CUMULATIVE LIABILITY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, ANY INTERRUPTION OF BUSINESS, LOSS OF OR DAMAGE TO BUSINESS OR REPUTATION, LOSS OF OPPORTUNITY, LOSS OF ADVANTAGE, LOSS OF USE OF ANY SOFTWARE OR DATA, LOSS OF USE OF ANY MOBILE PHONE OR OTHER EQUIPMENT, LOSS OF USE OF THE SYSTEM ON WHICH THE SITE, ACHIKO SOFTWARE OR ACHIKO SERVICES ARE USED, OR FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SITE, THE ACHIKO SOFTWARE, THE ACHIKO SERVICES OR THIRD PARTY CONTENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF WE OR OUR RELATED PARTIES HAVE BEEN ADVISED OR ARE OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES, EXCEED THE AMOUNT PAID BY YOU FOR YOUR USE OF THE ACHIKO SERVICES AND THE ACHIKO SOFTWARE IN THE SIX (6) MONTHS PRIOR TO THE ACCRUAL OF THE FIRST CLAIM. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THIS SECTION WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
4.2. Events Beyond Our Control. We and our Related Parties are not liable for any delay or default in performance under this Agreement caused by an event beyond our reasonable control, including but not limited to, war, accident, act of God, industrial action, embargo or a delay, failure or default by you, your wireless carrier, or any other supplier of goods or services to us or to you.
4.3. External Links. Without limiting the generality of the foregoing, we may provide third party content on the Site and may provide links to Web pages and content of third parties (collectively, our “Third Party Content”) as a service to those interested in this information. We do not monitor or have any control over any Third Party Content or third party Web sites. We do not endorse or adopt any Third Party Content and can make no guarantee as to its accuracy or completeness. We do not represent or warrant the accuracy of any information contained therein, and we undertake no responsibility to update or review any Third Party Content. You use such Third Party Content contained therein at your own risk.
5. REPRESENTATION AND WARRANTY; INDEMNITY
You represent and warrant that you will: (a) comply with all of your wireless carrier’s terms and conditions; and (b) not breach any of the terms set forth in this Agreement.
You agree to indemnify and hold us and our Related Parties harmless from and against any and all actual or threatened suits, actions, proceedings (at law or in equity), claims (groundless or otherwise), damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorneys’ fees, costs, penalties, interest and disbursements) resulting from any claim (including third party claims), suit, action or proceeding against us or our Related Parties, whether successful or not, resulting from, arising in connection with or relating to: (a) your breach of any term of this Agreement or any policy or guidelines referred to in it; (b) your use or misuse of the Site, the Achiko software or the Achiko services; or (c) any breach of any of your representations and warranties.
6.1. Termination by You. You may terminate this Agreement, for cause or no cause, by notifying us in accordance with Section 7.3.
6.2. Termination by Us. We may terminate this Agreement, for cause or no cause, with 14 days’ notice to you. Moreover, we may terminate this Agreement immediately without notice if: (a) you breach any of the terms of this Agreement (including, but not limited to, any restriction set forth in Section 1.2); (b) you damages a network or put a network at risk or abuses or threatens our staff; (c) you do not pay Achiko charges as required; or (d) we are ordered by any court or government agency to cancel our services or your use thereof.
6.3. Other Consequences of Termination. Upon termination of this Agreement for any reason: (a) you will no longer be able to use the services; (b) all licenses and rights to use the Achiko software and the Achiko services will immediately cease and you must remove the Achiko software from your devices and delete all copies of the Achiko software in your possession; and (c) we can disable or delete any Achiko software you have installed without notice to you.
6.5. Survival. The provisions that by their nature should survive, shall survive any termination of this Agreement.
7.1. Relationship of the Parties. You acknowledge and agree that nothing in this Agreement constitutes an employment agreement or creates or acknowledges an employment relationship between you and us or makes us partners, joint venturers or otherwise participants in a joint undertaking.
7.2. Amendments. We reserve the right to change or amend the terms of this Agreement at any time. If we do this and the change is to your detriment, we will place a notice on www.achiko.com or notify you by any other means we deem appropriate in our sole discretion. It is your responsibility to check www.achiko.com on a regular basis, including, without limitation, prior to using the Site, the Achiko software or the Achiko services. Your continued use of the Site, the Achiko software or the Achiko services constitutes your acceptance of the revised terms.
7.3. Notices. Notices by you to us hereunder shall be invalid unless made in writing to the mailing address listed on www.achiko.com. Notices by us to you may be made in any manner we deem appropriate in our sole discretion.
7.4. Assignment and Delegation. You must not transfer or assign any of your rights or delegate any of your duties under this Agreement without our prior written approval. We may freely transfer, assign or delegate this Agreement or its rights and duties under this Agreement. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors and permitted assigns.
7.6. Confidentiality. You must keep any information you obtain relating to our software confidential and will not use such information for any purpose that is not specifically provided for in this Agreement or authorized by us in writing.
7.7. Severability. If and to the extent any provision of this Agreement is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof shall be ineffective as to the jurisdiction in which it is illegal, invalid or unenforceable to the extent of its illegality, invalidity or unenforceability, and shall be deemed modified to the extent necessary to conform to applicable law so as to give it the maximum effect intended. The illegality, invalidity or unenforceability of such provision in that jurisdiction shall not in any way affect the legality, validity or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction
7.8. No Waiver. Our failure or delay to exercise or enforce any right or claim does not constitute a waiver of such right or claim and shall in no way affect our right to later enforce or exercise it.
7.9. Headings. The headings used in this Agreement are intended for convenience of reference only and in no way define, limit or describe the scope or substance of any of its provisions.
7.11. Prevailing Language. The English language version of this Agreement shall be controlling in all respects and shall prevail in case of any inconsistencies with translated versions, if any.