WEBSITE TERMS & CONDITIONS
Akita Systems (Akita) Limited provides access to and the use of this website subject to the following Terms and Conditions.
YOUR ACCEPTANCE OF THESE TERMS
Your use of our website constitutes your agreement to all the terms and conditions contained in this document. If you do not agree with the terms of this document either in full or in part, you should cease using this website immediately.
CHANGES TO THE TERMS & CONDITIONS
Akita reserves the right to change, add or delete terms of this policy at any time and will post these changes on our website. You are therefore advised to visit the Akita website on a regular basis to obtain notice of such changes.
TERMS OF USE & COPYRIGHTS
All website design, names, images, text, graphics, logo and the arrangement thereof are owned by or licensed to Akita or otherwise used by Akita as permitted by applicable law. Nothing contained herein shall be construed as conferring by implication, or otherwise on you any licence or right to any such matters.
By using Akita’s website, you agree that you will not copy, store in any medium (including in any other website, but except for short term caching of webpages on your local computer), distribute, transmit, re-transmit, broadcast, modify, or show in public any part of Akita website without the prior written permission of Akita or in accordance with the Copyright, Designs and Patents Act 1988. The material contained in Akita’s website must not be copied, reproduced, republished, downloaded, posted, broadcast or transmitted in any way except for your own personal non-commercial home use. Any other use requires the prior written permission of Akita.
You agree when using Akita’s website not to adapt, alter or create a derivative work from any of the material contained in this site or use it for any other purpose. You may only use this website for lawful purposes, and in a manner which does not infringe the rights of, or restrict or inhibit the use and enjoyment of this site by any third party. Such restriction or inhibition includes, without limitation, conduct which is unlawful, or which may harass or cause distress or inconvenience to any person and the transmission of obscene or offensive material within this site.
Akita is providing this website and its contents on an “AS IS” and an “IS AVAILABLE” basis without any representation or endorsement made and without warranty of any kind whether express or implied, including but not limited to the implied warranties of satisfactory quality, fitness for a particular purpose, non-infringement, compatibility, security and accuracy. In no event will Akita be liable for any damages including, without limitation, indirect or consequential damages, or any damages whatsoever arising from or in connection with the use of our website or loss of use or data or profits suffered by you, whether in action of contract, negligence or other tortuous action, arising out of or in connection with the use of the site.
Whilst Akita will try to ensure that the standard of this website remains high, we do not warrant that the website will be uninterrupted or error free, that defects will be corrected, or that this site or the server that makes it available are free of viruses or bugs or represents the full functionality, accuracy, reliability of the information.
If there is a conflict between these Terms and Conditions and rules and/or specific terms of use appearing on this site relating to specific material then the latter shall prevail.
If any of these Terms and Conditions should be determined to be illegal, invalid or otherwise unenforceable by reason of the laws of any state or country in which these Terms and Conditions are intended to be effective, then to the extent and within the jurisdiction which that Term or Condition is illegal, invalid or unenforceable, it shall be severed and deleted from this clause and the remaining Terms and Conditions shall survive, remain in full force and effect and continue to be binding and enforceable.
These Terms and Conditions shall be governed by and construed in accordance with the laws of England and Wales. The courts of England and Wales are to have exclusive jurisdiction to settle any disputes arising out of or in connection with the use of this website.
AKITA SYSTEMS LTD STANDARD TERMS AND CONDITIONS FOR THE SUPPLY OF SERVICES AND EQUIPMENT (excluding hosted services and connectivity)
Parties:
(1) “The Company”: AKITA SYSTEMS (AKITA) LIMITED (registered number 3297540) Unit 5, Chaucer Business Park, Kemsing, Sevenoaks, Kent TN156PL
(2) “The Purchaser”
The Company has agreed to sell and the Purchaser to purchase the Equipment listed in a Schedule or on the accepted quotation or order confirmation or proforma invoice or elsewhere
1.Definitions
1.1 In this Agreement unless the context otherwise requires:-
“ACCEPTANCE DATE” means the date upon which the Equipment is accepted by the Purchaser
“ACTUAL DELIVERY DATE” means the actual date of delivery of the Equipment to the Place of Use
“DELIVERY DATE” means the estimated date for the delivery of the Equipment
“EQUIPMENT” means the items of hardware and or software and or services identified either by type or serial number and price in a Schedule or by description on the an invoice or elsewhere
“PLACE OF USE” means of the Purchaser’s premises where the Equipment is to be installed
“PURCHASE PRICE” means the price of the Equipment set out in a Schedule or an accepted quotation or order confirmation or proforma invoice or elsewhere
2.Agreement
The Company agrees to sell and the Purchaser agrees to purchase the Equipment upon the terms and conditions of this agreement and in consideration of the payment of the Purchase Price by the Purchaser
3.Purchase price
3.1 The Purchase Price shall include the cost of delivery of the Equipment to the Place of Use
3.2 Any special delivery costs properly and reasonably incurred by the Company shall be separately invoiced to the Purchaser
3.3 Value added tax shall be payable on the Purchase Price by the Purchaser
3.4 Payment in full of the Purchase Price and any special costs separately invoiced shall become due upon delivery of the Equipment unless otherwise agreed
3.5 The Company reserves the right to charge the Purchaser interest in respect of the late payment of any sum due under this Agreement (as well after as before judgement) at the rate of 20 per cent per annum above the base rate from time to time of Barclays Bank plc from the date due until payment is received
4.Delivery
4.1The Company shall use all reasonable endeavours to deliver the Equipment to the Place of Use on the Delivery Date or as soon thereafter as is possible
4.2 The Company shall give the Purchaser not less than two days’ notice of the Actual Delivery Date
4.3 At delivery the Purchaser shall make available to the Company free of charge such labour and equipment as the Company shall have previously specified in writing and which it shall reasonably require to deliver and install the Equipment
5. Preparation of the place of use
The Purchaser shall complete the preparation of the Place of Use in accordance with the requirements of the Company on or before the Delivery Date Preparation of the Place of Use shall include the making of all alterations to the Purchaser’s premises necessary to permit delivery and installation of the Equipment including all wiring and cabling for connection of the Equipment
6. Title to and risk in the equipment and documentation
6.1 Title to the Equipment shall not pass to the Purchaser until the date that the Purchase Price (and any special costs payable pursuant to clause 3.2 above) and value added tax thereon have been paid in full to the Company (the “Payment Date”)
6.2 Until the Payment Date the Purchaser shall not be entitled to sell transfer lease charge assign by way of security or otherwise deal in or encumber the Equipment and the relationship between the Company and the Purchaser in respect of the Equipment including any proceeds of sale or other consideration therefore shall be a fiduciary one
6.3 If either:-
6.3.1 the Purchaser fails to effect payment in full of all sums due hereunder by the Payment Date or
6.3.2 prior to the Payment Date the Purchaser convenes a meeting of its creditors or a proposal is made for a voluntary arrangement within Part I of the Insolvency Act 1986 or a proposal for any other composition scheme or arrangement with (or assignment for the benefit of) the Purchaser’s creditors or if the Purchaser is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or if a trustee receiver administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the Purchaser or if a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the Purchaser or for the making of an administration order (otherwise than for the purpose of an amalgamation or reconstruction)then the Company or their authorised agents (without prejudice to any other legal remedies it may have) shall at any time thereafter be entitled to enter upon the Place of Use or where the Equipment is at the time kept (without notice to the Purchaser) and remove the Equipment without any hindrance or obstruction whatsoever and the Purchaser hereby authorises the Company to so enter the Place of Use and if necessary break locks doors or windows to gain access. The company shall take all reasonable care but will not be liable for any damage caused
6.4 If in breach of clause 6.2 above the Purchaser sells the Equipment prior to the Payment Date then any proceeds of sale in respect thereof and all rights arising under or in respect of said sale shall be held (in the case of the proceeds of sale in a separate account) by the Purchaser as trustee for the Company
6.5 Risk in the Equipment shall pass to the Purchaser upon the Actual Delivery Date
6.6 If payment in full is not made on delivery then with effect from the Actual Delivery Date up to and including the Payment Date the Purchaser shall insure the Equipment for its full replacement value with such insurance company as the Company shall approve (such approval not to be unreasonably withheld) and shall provide a copy of the insurance certificate to the Company which certificate shall have the Company endorsed thereon as loss payee
7. Warranty in respect of the equipment
7.1 Subject to the limitations upon its liability set out in clause 8 below the Company warrants to the Purchaser that the hardware will for a period of twelve months from the Acceptance Date be free from defects in or arising from design materials and workmanship
7.2 The Purchaser shall give notice to the Company immediately upon becoming aware of a breach of warranty
7.3 The Company shall as soon as it is reasonably able investigate any alleged breach of warranty and in the case of a breach of warranty falling within clause 7.1 above shall remedy the same free of charge by carrying out such repairs modifications or alterations to the hardware and/or replacing the hardware or such component parts as it shall in its absolute discretion think fit
7.4 The obligations of the Company under clause 7.3 above shall be discharged between the hours of 10.00 a.m. to 4.00 p.m. Monday to Friday (bank and other public holidays excepted)
7.5 Any hardware or component parts of the hardware replaced by the Company pursuant to clause 7.3 above (“Replaced hardware”) shall upon replacement become the property of the Company and the Purchaser warrants that its title to such Replaced hardware shall be free and unencumbered or that it shall have all necessary consents and authorities to part with possession of the Replaced Equipment
7.6 Subject to the foregoing and with the exception of the condition and warranties implied by section 12 of the Sale of Goods Act 1979 all conditions warranties terms and undertakings express or implied statutory or otherwise in respect of the hardware and the provision of the Services are hereby excluded
7.7 In the event of a clear breach of warranty by the Company it will use all reasonable endeavours to repair or replace any defective hardware to which the warranty applies within seven working days of acceptance of breach by the Company on a return to base basis
7.8 This warranty does not relate to any routine or other servicing or maintenance of the Equipment whether or not the Purchaser has entered into a service agreement with the Company with the respect of the Equipment
7.9 This warranty is not transferable or capable of assignment by the Purchaser
8. Limitation of liability
8.1 The Company’s liability to the Purchaser for death or injury resulting from its own or that of its employees’ agents’ or sub-contractors’ negligence and all damage suffered by the Purchaser as a result of the implied statutory undertakings as to title quiet possession and freedom from encumbrances shall not be limited
8.2 Subject to clause 8.1 above the Company shall not be liable to the Purchaser in respect of loss of profits goodwill or any type of special indirect or consequential loss (including loss or damage suffered by the Purchaser as a result of an action brought by a third party) even if such loss was reasonably foreseeable or the Company had been advised of the possibility of the Purchaser incurring the same
9. Access to the Place of Use
The Purchaser shall allow the Company including its employees agents and sub-contractors such access to the Place of Use as it shall from time to time properly require
10. Termination
10.1 This agreement may be terminated:-
10.1.1 forthwith by the Company if the Purchaser fails to pay any sum due hereunder within 14 days of the due date
10.1.2 forthwith by either party if the other commits any material breach of any term of this agreement (other than failure to make payment by the Purchaser) and which (in the case of a breach capable of being remedied) shall not have been remedied within 28 days of a written request to remedy the same and
10.1.3 forthwith by either party if the other shall convene a meeting of its creditors or if a proposal shall be made for a voluntary arrangement within Part I of the Insolvency Act 1986 or a proposal for any other composition scheme or arrangement with (or assignment for the benefit of) its creditors or if the other shall be unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or if a trustee receiver administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the other party or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the other party or for the making of an administration order (otherwise than for the purpose of an amalgamation or reconstruction)
10.2 Any termination of this agreement pursuant to this clause shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination
11. Confidentiality
Each of the parties hereto undertakes to the other to keep confidential all information (written or oral) concerning the business and affairs of the other that it shall have obtained or received as a result of the discussions leading up to or the entering into of this Agreement
11.1 Credit card privacy policy
We do not store credit card details nor do we share customer details with any 3rd parties
12. Force majeure
Neither party hereto shall be liable for any breach of its obligations hereunder resulting from causes beyond its reasonable control including but not limited to fires strikes insurrection riots embargoes shortages delays in transportation inability to obtain supplies or requirements or regulations of any civil or military authority
13. Notices
Any notice request instruction or other document to be given hereunder shall be delivered or sent by first class post or by email or by facsimile transmission to the address or to the facsimile number of the other party set out in this agreement or such other address or numbers as may have been notified
14. Invalidity and severability
If any provision of this agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic legal and commercial objectives of the invalid or unenforceable provision
15. Successors
This agreement shall be binding upon and ensure for the benefit of the successors in title of the parties hereto
16. Assignment
Neither party shall be entitled to assign this agreement nor all or any of their rights and obligations hereunder without the prior written consent of the other
17. VAT
Save insofar as otherwise expressly provided all amounts stated in this agreement are expressed exclusive of value added tax and any value added tax arising in respect of any supply made hereunder shall on the issue of a valid tax invoice in respect of the same be paid to the party making such supply by the party to whom it is made in addition to any other consideration payable therefore
18. Telephone Conversations
Akita Systems Limited records all calls for training and monitoring purposes
SUPPLY AGREEMENT FOR HOSTED SERVICES & CONNECTIVITY
In reference but not limited to:
Domain name hosting, Hosted desktops, Hosted servers, Hosted applications, Email, Offsite backup, Website hosting, Hosted security services, Internet connectivity
DEFINITIONS
In these terms, unless the context otherwise requires, the following expressions have the following meanings:
“Acceptable Use Policy”
means the Akita Systems Ltd policy for the Customer’s use of Services, as set out in the Akita Systems Limited Acceptable Usage Policy and may be amended by Akita Systems Ltd from time to time.
“Confidential Information”
all information obtained by one party from the other which is expressly marked as confidential or which is manifestly confidential or which is confirmed in writing to be confidential within 7 days of its disclosure;
“Customer”
the user of the Services supplied under these Terms;
“Customers Material”
the Customers data loaded, received, maintained or transmitted by Akita Systems Ltd on the
System for the Customer under these Terms;
“Initial Period”
shall be 12 months unless otherwise stated. The Initial period shall commence on the Commencement Date.
“License Terms”
the licensing conditions and restrictions of the Software manufacturer, supplier or licensor;
“Software”
all machine readable data and instructions, including firmware and related updates and upgrades, licenses materials, user documentation, user manuals and operating procedures used or in the provision of, or the for the Customer to access, the Services;
“the Servers”
Akita Systems Ltd’s server(s) used for the purpose of providing the Services;
“the Services”
as per the Service Description for each element of the Services as set out in the invoice;
“Service Description”
the description of component services as set out in the agreement or the invoice that in aggregate make up the Services
“the SLA”
the Service Level Agreement for the Services
“System”
the equipment [hardware, software etc.] belonging to or used by Akita Systems Ltd and which provides a link to the World Wide Web via the Internet;
“Terms”
the terms of this Agreement and the annexed Schedules.
“Working Days”
Monday to Friday excluding English Public Holidays between the hours of 08:00 & 18:00
2. SUPPLY OF THE SERVICES
2.1
Akita Systems Ltd shall supply the Services in accordance with the provisions of these Terms
2.2
Akita Systems Ltd shall supply the Services in accordance with applicable Service Description for each element of the Services and the SLA for the Services. The Service Description for each element of the Services and the SLA for the Services are set out in the invoice and may be varied from time to time.
2.3
Akita Systems Ltd reserves the right to control, direct and establish technical procedures for the use of the Server and provision of the Services and the Customer shall follow the reasonable instructions and procedures of Akita Systems Ltd. Akita Systems Ltd may make reasonable operational changes to the Services without prior notice when necessary.
2.4
Akita Systems Ltd has obtained and shall use its reasonable endeavours to ensure that it retains all necessary consents, licenses or certifications required for the provision of the Services.
2.5
Akita Systems Ltd shall use reasonable care and skill when providing Services but does not guarantee that the Services shall be continually available to the Customer. There may be occasions when Services are disrupted through an error or act of the Customer or another third party or, circumstances outside the reasonable control of Akita Systems Ltd (“Service Disruption”). In the event of unavailability of Services to the Customer, other than in the case of Service Disruption, Akita Systems Ltd shall reimburse the Customer (“Service Credit”) within Working Days as follows:
Service Availability
25% Between 99.0% and 99.5%
50% Between 95.0% and 98.9%
100% Less than 95.0%
2.5.1 The service availability calculation excludes standard Exchange Server cluster failovers
2.5.2 Service level data is based on data collected over whole calendar months, based on the definition set out in Working Days.
2.5.3 The Service Credit shall be the sole remedy to the Customer in respect of the unavailability of Services.
2.6
Akita Systems Ltd shall, either on its own reasonable judgment, or on request by the Customer, promptly suspend availability of the Services over the Internet. Akita Systems Ltd shall likewise, on its own reasonable judgment or on request by the Customer, promptly resume the provision of the Services following such suspension.
2.7
Akita Systems Ltd shall maintain reasonable safeguards against the destruction, loss or unauthorised alteration of the Customers Material, and shall maintain reasonable security procedures to restrict the destruction, corruption or unauthorised access to the Customer’s Material, including back up material.
2.8
Akita Systems Ltd will at all times implement and use appropriate virus-protection procedures and software on the Customers Material.
3. CONDITIONS OF USE OF THE SERVICES BY THE CUSTOMER
3.1
The Customer will be responsible for obtaining and maintaining the Customer’s own compatible computer system being all such equipment, software and communications lines, including any public lines required by the Customer to access the
Services (“Customer’s Equipment”). Akita Systems Ltd has no responsibility for or liability with respect to the Customer’s Equipment.
3.2
All Software made available for use by the Customer under these Terms is provided subject to the License Terms.
3.3
The Services are supplied subject to the condition that there will be no abuse or fraudulent use thereof. Abuse and fraudulent use of the Services shall include (without limitation):
3.3.1 obtaining, or attempting to obtain, the Service by rearranging, tampering with, or making connection with any facilities of Akita Systems Ltd, or by any trick, scheme, false representation or false credit device, or by or through any other fraudulent means or devices whatsoever, with intent to avoid payment, in whole or in part, of the regular charges for the Services;
3.3.2 attempting to, or actually obtaining, accessing, altering, or destroying the data files, programs, procedures and/or information of Akita Systems Ltd or of another customer of Akita Systems Ltd;
3.3.3 using the Services in such a manner as to interfere unreasonably with the use of the Services by any other user or authorised person.
3.3.4 the resale of the Services without Akita Systems Ltd’s prior written approval.
3.4
Akita Systems Ltd shall take reasonable steps to protect the Customers information, however the Customer acknowledges that the Internet is not secure and accordingly that Akita Systems Ltd cannot guarantee the privacy of the Customer’s information.
3.5
The Customer shall use the Services in accordance with the Acceptable Use Policy of Akita Systems Ltd and in particular (but without limitation) the Customer shall not:
3.5.1 send any message, email or other communication which, under the laws of England and Wales or, where appropriate, under international laws, conventions, codes or regulations applicable to the Internet:
3.5.1.1 is in breach of those laws, codes or regulations including but not limited to infringement of copyright and other intellectual property rights (“IPRs”), defamation, theft, fraud, drug-trafficking, money- laundering and terrorism;
3.5.1.2 may incite violence, sadism, cruelty or racial hatred;
3.5.1.3 may facilitate prostitution or paedophilia;
3.5.1.4is pornographic, obscene, indecent, abusive, offensive or menacing.
3.5.2 knowingly create and/or introduce any malware, virus, worm, Trojan horse or other destructive or contaminating program or advise any other party how to do so;
3.5.3 invade the privacy of other users of the Services or the Internet, for example by sending unsolicited emails (“spamming”) nor collect or transfer personal data on individuals without their consent;
3.6
The Customer shall use an up-to-date virus-scanning program on all the Customer’s Material.
3.7
The Customer shall maintain confidentiality of its login names, passwords and other confidential information relating to the Customer’s access to the Service.
3.8
The Customer acknowledges that Akita Systems Ltd does not operate or exercise control over, and accepts no responsibility for the content of the Customers Materials received on the System.
4. PROFESSIONAL SERVICES
4.1
Akita Systems Ltd shall provide professional services as agreed between Akita Systems Ltd and the Customer
4.2
The agreement shall set out:
4.2.1The scope of the professional services to be provided by Akita Systems Ltd; 4.2.2
The deliverables by Akita Systems Ltd to the Customer;
4.2.3 The period during which the professional services are to be delivered or the date by which deliverables will be delivered to the Customer;
4.2.4 The specification of the professional services to be delivered;
4.2.5 The conditions upon which professional services will be delivered to the Customer by Akita Systems Ltd;
4.2.6 The acceptance tests to be carried out (if applicable) in respect of the professional services;
4.2.7 The charges to be paid by the Customer to Akita Systems Ltd for the supply of Professional Services;
4.4
Akita Systems Ltd shall perform the professional services in a professional manner and with due care and skill;
4.5
Each party acknowledges that the scope and specification of the professional services may be subject to change subsequent to the commencement of the professional services. Variation to the agreement shall be agreed between Akita Systems Ltd and the Customer and confirmed in writing (“Change Order”) by both parties
4.6
Where Akita Systems Ltd perform professional services at a Customer site or another third party site the Customer will pay Akita Systems Ltd all travel and all out of pocket expenses on demand. For the avoidance of doubt travel costs will be charged at 50 pence per mile, all other travel and subsistence expenses will be recharged at cost.
5. INDEMNITY
5.1
Each party shall indemnify the other against any claims, proceedings, losses, liabilities, damages charges and expenses (including reasonable costs) of whatever nature arising out of or in connection with any claim or action relating to a breach of the obligations (including negative obligations) under this Agreement provided however that each party:
5.1.1 shall not make any admissions without the other parties prior written consent;
5.1.2 shall not take any step (or omit to take any step) which would prejudice the other parties defence of the claim or action;and
5.1.3 shall allow the other party to conduct and/or settle all negotiations and litigation resulting from such claim or action provided that where the Customer fails to commence and diligently undertake conduct of such matters
within 7 days of the Customer having been notified of the dispute then Akita Systems Ltd shall be at liberty to take over conduct of the matter at the cost of the Customer (with all costs, disbursements and expenses to be reimbursed on demand).
5.2
Akita Systems Ltd shall, at the reasonable request of the Customer, afford all reasonable assistance with such negotiations or litigation and shall be reimbursed by Customer for any reasonable legal costs, disbursements and out of pocket expenses incurred in so doing.
6. PAYMENT
6.1
The Customer shall pay to Akita Systems Ltd the charges for the supply of the Services as set out in the invoice.
6.2
The charges payable under these Terms are exclusive of Value Added Tax (unless otherwise indicated) which shall be paid by the Customer at the rate and in the manner for the time being prescribed by law
6.3
Akita Systems Ltd may vary all or any charges by giving 60 days written notice to the Customer in advance of the expiry of the Initial Period or any anniversary thereof, save for the passing through of any increased charges by a third party service provider or licensor in which case charges may be varied by giving 30 days’ notice at any time;
6.4
Where charges are not paid by the Customer when due, Akita Systems Ltd upon 7 days’ notice may suspend all Services to the Customer.
6.5
The customer shall pay charges for professional services under the Statement of Work within 30 days of the performance of such services, or upon the completion or acceptance of such professional services, whichever is the earlier. Akita Systems Ltd shall notify the customer in writing when it considers the professional services to have been performed/completed/accepted as appropriate. Where payment terms are specified in the Statement of Work they shall override this clause 6.5.
6.6
Any Services provisioned to the Customer subsequent to the Commencement Date in addition to the Services in Schedule
1 shall be deemed to be additions to Schedule 1(“Additional Services”) and provided in accordance with the Terms of this Agreement. Additional Services shall co-terminate at the end of the Initial Period or if the Initial Period is past, the next anniversary of the Commencement Date.
7. AKITA SYSTEMS LTDS SOFTWARE
7.1
Akita Systems Ltd hereby grants to the Customer and the Customer hereby accepts a non-exclusive and non-transferable license to use any Software provided by Akita Systems Ltd to access the Internet, for the sole purpose of enabling the Customer to use the Services. The Customer hereby acknowledges that the title of and intellectual property rights to all such software is and shall remain in the ownership of Akita Systems Ltd. The Customer hereby undertakes to use its best endeavours to protect and keep confidential all Akita Systems Ltd software used by it, and shall make no attempt to examine, copy, alter, reverse engineer, disassemble or tamper with such software.
8. LIMITATION OF LIABILITY
8.1
Except as specified in clause 2.5 Akita Systems Ltd shall not be liable to the Customer for any loss or damage whatsoever or howsoever caused arising directly or indirectly in connection with the supply of Services, the System, the connectivity to the Internet, any Software or its use, application, support or otherwise, except to the extent to which it is unlawful under the applicable laws and regulations to exclude such liability.
8.2
Akita Systems Ltd shall not be liable to the Customer for loss of profits or contracts, loss of goodwill or other special, indirect or consequential loss whether arising from negligence, breach of contract or howsoever
8.3
In the event that any exclusion contained in these Terms shall be held to be invalid for any reason and Akita Systems Ltd becomes liable for loss or damage that it may otherwise have been lawful to limit, such liability shall be limited to the fees paid by the Customer in the Year in which the liability occurred.
8.4
Akita Systems Ltd does not exclude liability for death or personal injury to the extent only that the same arises as a result of the negligence of Akita Systems Ltd its employees, agents or authorised representatives and further to the extent Akita Systems Ltd is not able to exclude such liability by law.
9. INTELLECTUAL PROPERTY RIGHTS
9.1
Akita Systems Ltd acknowledges and agrees that the copyright, trademarks, trade names, patents and all other intellectual property rights vesting in the Customer shall remain vested in the Customer and nothing in these Terms shall operate as an assignment to Akita Systems Ltd of such intellectual property rights.
9.2
The Customer acknowledges and agrees that the copyright, trademarks, trade names, patents and all other intellectual property rights vesting in Akita Systems Ltd shall remain vested in the Akita Systems Ltd and nothing in these Terms shall operate as an assignment to the Customer of such intellectual property rights.
9.3
Akita Systems Ltd acknowledges that the Customer’s Material will at all times remain under the sole ownership of the Customer with the Customer retaining all rights to the same.
10. CONFIDENTIALITY
10.1
Akita Systems Ltd and the Customer shall treat as confidential all Confidential Information and shall not divulge such Confidential Information to any person (except to such party’s own employees and then only to those employees who need to know the same) without the other party’s prior written consent provided that this clause shall not extend to information which was rightfully in the possession of such party, which is already public knowledge or becomes so at a future date (otherwise than as a result of a breach of this clause) or which is trivial or obvious. Each party shall ensure that its employees are aware of and comply with the provisions of this clause.
11. DATA PROTECTION
11.1
The Customer hereby notifies Akita Systems Ltd that the Customers Material contains personal data as defined in Section 1(1) of the Data Protection Act 1998 (the Customers Personal Data) and warrants to Akita Systems Ltd that the Customer has notified under the said Act in respect of the Customers Personal Data.
11.2
The Customer warrants and undertakes to Akita Systems Ltd that:
11.2.1 the Customers Personal Data has been obtained and processed (in so far as the Customers Personal Data has been processed) lawfully;
11.2.2 the Services will be entirely consistent with and appropriate to the specified and lawful purposes for which the
Customer has notified under the said Act in respect of the Customers Personal Data (the “Notified Purposes”);
11.2.3the Customer has not hitherto and will not during the continuance of these Terms use or disclose the
Customers Personal Data or any part thereof in a manner incompatible with the Notified Purposes;
11.2.4 the Customers Personal Data is adequate, relevant and not excessive in relation to the Notified Purposes; and
11.2.5 the Customers Personal Data is accurate and the Customer shall keep the Customers Personal Data fully up to date at all times during the continuance of these Terms.
11.3
In addition to any indemnity given by the Customer elsewhere in this Agreement, the Customer shall indemnify Akita Systems Ltd against any loss or damage which Akita Systems Ltd may sustain or incur as a result of any breach by the Customer of the provisions of this Clause. In performing its Services Akita Systems Ltd may process (albeit for diagnostic or investigative purposes only) personal data belonging to the Customer. Akita Systems Ltd hereby warrants to the Customer that in such circumstances it will in respect of such personal data observe all the obligations pertaining to a data processor under the Data Protection Act 1998 and will indemnify the Customer against all breaches of the said Act by Akita Systems Ltd in respect of the Customers data.
12. FORCE MAJEURE
Notwithstanding clause 2.5, Akita Systems Ltd will not be responsible for any delay in, or failure of, the Services or the Internet due to any occurrence, event or cause beyond Akita Systems Ltd’s reasonable control, which may prevent or hinder the performance of Akita Systems Ltd of any of its obligations under this Agreement.
13. DURATION AND TERMINATION
13.1
These Terms shall commence on the Commencement Date and shall continue until terminated in accordance with this Clause 13.
13.2
These Terms may be terminated by the Customer by giving at least one month’s notice in writing in advance of the expiry of the Initial Period or any subsequent anniversary of the Commencement Date thereafter. In the event such notice is given, termination of these Terms shall take effect at the expiry of the Initial Period or subsequent anniversary of the Commencement Date, as appropriate.
13.3
These Terms may be terminated forthwith by either party on giving notice in writing to the other if the other party shall have a receiver or administrative receiver appointed or shall pass a resolution for winding-up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or if the other party shall become subject to an administration order or shall enter into any voluntary arrangement with its creditors or a bankruptcy petition presented to the court or shall cease or threaten to cease to carry on business.
13.4
Akita Systems Ltd may cease to supply the Services forthwith without giving notice to the Customer if the Customer is in material breach of these Terms and has failed to rectify such breach (in the case of a breach capable of being remedied) within 14 days of receiving a written notice requiring it to do so.
13.5
Any termination under this clause 13 shall discharge Akita Systems Ltd from any liability for further performance of the Services but its rights to make any claim for any antecedent breaches shall remain in force.
14. AMENDMENTS
14.1
No variation to the provisions of these Terms or Schedules shall be of any effect unless made in writing and agreed and signed by or on behalf of Akita Systems Ltd and the Customer.
15. ASSIGNMENT
15.1
Akita Systems Ltd may perform any of the obligations undertaken by it and to exercise any of the rights granted to it under these
Terms through any other company which at the relevant time is its holding company or subsidiary (as defined by section 1159 of the Companies Act 2006) or the subsidiary of any such holding company, and any act or omission of any such company shall for the purposes of these Terms be deemed to be the act or omission of Akita Systems Ltd.
16. NOTICES
16.1
Any notice required or permitted under these Terms or required by statute, law or regulation shall (unless otherwise provided) be in writing and shall be delivered in person, sent by registered mail as appropriate, properly posted and fully pre-paid in an envelope properly addressed or sent by facsimile or email to the respective addressee at its usual place of business or to such other address, facsimile number or email address as may from time to time be designated by notice hereunder.
16.2
Any such notice shall be considered to have been received on the next working day following delivery, facsimile or emailing or in any other event within seven (7) Working Days after it was mailed in the manner provided under this clause.
17. LAW
17.1
These Terms shall be governed by and construed in accordance with the laws of England and Wales.
17.2
Any dispute which may arise between the parties concerning these Terms shall be determined by the English Courts and the parties hereby submit to the exclusive jurisdiction of the English Courts for such purpose.
18. INTERPRETATION In these Terms:
18.1
reference to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended or re-enacted;
18.2
words importing the singular include the plural, words importing any gender include every gender and words importing persons include bodies corporate and unincorporated; and (in each case) vice versa;
18.3
any reference to Akita Systems Ltd or the Customer in these Terms includes a reference to their successors in title and permitted assigns;
18.4
the headings to the clauses are for ease of reference only and shall not affect the interpretation or construction of these Terms.
18.5
any reference to a clause means a clause in this Agreement unless the contrary is stated.
18.6
references to “written” (e.g. written consent or written notice) shall include by email.
19. SEVERABILITY
19. 1
Notwithstanding that the whole or any part of any provision of these Terms may prove to be illegal or unenforceable the other provisions of these Terms and the remainder of the provision in question shall remain in full force and effect.
20. THIRD PARTIES
20.1
Akita Systems Ltd and the Customer confirm their intent not to confer any rights on any third parties by virtue of these Terms and accordingly the Contracts (Rights of Third parties) Act 1999 shall not apply.
21. WAIVER
The waiver by either party of a breach or default of any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.
22. ENTIRE AGREEMENT
22.1
Each party on behalf of itself and as agent for each of its related persons acknowledges and agrees with the other party
(each such party acting on behalf of itself and as agent for each of its related persons) that:
22.1.1 this Agreement constitutes the entire and only Agreement between the parties and their respective related persons relating to the subject matter of this Agreement;
22.1.2 neither it nor any of its related persons has been induced to enter into this Agreement in reliance upon, nor has any such party been given, any warranty, representation, statement, assurance, covenant, agreement, undertaking, indemnity or commitment of any nature whatsoever other than as are expressly set out in this Agreement and, to the extent that any of them have been, it (acting on behalf of itself and as agent on behalf of each of its related persons) unconditionally and irrevocably waives any claims, rights or remedies which any of them might otherwise have had in relation thereto; PROVIDED THAT the provisions of this clause 22.1 shall not exclude any liability with any of the parties or, where appropriate, their related persons would otherwise have to any other party or, where appropriate, to any other party’s related persons or any right which any of them may have in respect of any statements made fraudulently by any of them prior to the execution of this Agreement or any rights which any of them may have in respect of fraudulent concealment by any of them.
Acceptable Use Policy for Hosted Services
This Acceptable Use Policy (“Policy”) describes the proper and prohibited use of Hosted Services (“Services”) provided by Akita Systems Limited(“Akita Systems Ltd”) to the user of the Services (the “Customer”) as subscribed to through Akita Systems Ltd’s Services Supply Agreement. This Policy is designed as a guideline and is not exhaustive in the description of use.
Akita Systems Ltd does not monitor or censor the information within its services other than the application of network monitoring and filtering. Akita Systems Ltd reserves the right remove any content for any reason, including but not limited to, your violation of any conditions of this Acceptable Use Policy. Akita Systems Ltd’s right to remove inappropriate content under this Policy shall not extend to editorial rights over the content. If Akita Systems Ltd determines at its sole discretion that use of the Services have violated the terms of this Acceptable Use Policy, then without notice, Akita Systems Ltd may terminate the Service Supply Agreement between Akita Systems Ltd and the Customer.
Akita Systems Ltd Services are not to be used to;
1. Create or maintain software download or distribution sites or sites created for the purpose of mass distribution of software products.
2. Create or maintain sites that generate system errors or exceptions that disrupt server performance or cause server-wide outages. This includes overriding or avoiding system settings and restrictions imposed Akita Systems Ltd.
3. Violate any applicable laws, regulations, or other provisions having the force of law.
4. Impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity.
5. Employ misleading e-mail addresses or falsify information in any part of any communication.
6. Upload, transmit, disseminate, post, store or post links to any content that:
a. Is prohibited from transmitting or posting by law, or by contractual or fiduciary relationship;
b. Facilitates hacking or unauthorized access or use of data, systems, servers or networks including any attempt to probe, scan or test for vulnerabilities, or to breach security or authentication measures;
c. Falsifies origin by forging TCP/IP packet headers, e-mail headers, or any part of a message header;
d. Interferes with service to any user, system or network by using flooding techniques, overloading a system or a network, staging or broadcasting an attack, or any other means resulting in a crash of a host either deliberately or by negligence;
e. Infringes or contributes to any infringement of any intellectual property, material protected by copyright, trademark, patent, trade secret or proprietary right of any party;
f. Is or may be considered unsolicited or unauthorized advertising, promotional material, junk mail, spam, spam advertisements, make money fast schemes, chain letters, pyramid schemes, or any other form of solicitation;
g. Contains viruses, worms, trojan horses, time bombs, trap doors, or any other computer code, files, or programs or repetitive requests for information designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
h. Is unlawful, harmful, threatening, abusive, harassing, may be interpreted as libel, defamatory, vulgar, obscene, or invasive of privacy;
i. Is of adult nature, pornographic, or harmful to minors;
j. Promotes illegal activity, including providing instructions for illegal activity, or transmitting, disseminating or offering fraudulent goods, services, schemes or promotions, or furnishing false data on any signup form, contract or online application or registration, or the fraudulent use of any information obtained through the use of the Services including use of credit card numbers.
k. Exploits the images of children or discloses personally identifiable information belonging to children