AK Digital, Legal Terms of Use

These General Terms and Conditions apply to the access and use of the Platform Services (as defined below) and is an enforceable agreement between AK Digital LLC ("Licensor") and the corporation, LLC, partnership, sole proprietorship, or other business that executed the AK Digital, LLC Platform-As-A-Service Order Form ("Client"). Customer's use of and Licensor's provision of Licensor's Platform Services are governed by these Terms and Conditions, the Order Form and the Documentation.

After having read the characteristics and functionalities, Client wants to use and benefit from the Platform Services in accordance with the Contract. The Contract constitutes the entirety of the contractual relations between Client and AK Digital, LLC with respect to the provision, operation and the use of the Platform Services. AK Digital, LLC does not accept deviating general terms and conditions of Client, unless AK Digital, LLC explicitly agrees to their validity in written form.

1. DEFINITIONS

All capitalized terms not defined in this Section 1 have the meaning as defined in the Order Form.

1.1 "Client Administrator" means a distinguished User who is allowed to completely administrate Client's access to the Platform Services including without limitation setting up and deleting User accounts. There must be at least one Client Administrator, but there may be also more than one.

1.2 "Client Application" means any computer program and/or software, which (a) is designed and developed by Client or by any other specially mandated third party on behalf of Client in the framework of the Platform Services; and (b) may possibly integrate Client specific external software services or applications.

1.3 "Client Content" means any data, information, images, trademarks, logos, brands and other elements, which Client and/or its Users submit to and make available within the scope of using the Platform Services, with the exception of Client Applications.

1.4 "Client Data" means personal data (Art. 4 no. 1 GDPR) of Client and its Users processed by AK Digital, LLC as data processor (Art. 4 no. 8 GDPR) in relation with the provision, operation and use of the Platform Services.

1.5 "Confidential Information" means confidential and proprietary information of the Parties, including (a) information of a confidential nature; (b) information, which was marked or designated as confidential, when disclosed or made available to the other Party; (c) non-publicly available specifications and the source code of the Platform and the Platform Services; as well as (d) the Contract.

1.6 "Contract" means collectively the Order Form and these General Terms and Conditions, including any references to the Documentation.

1.7 "Documentation" means any of AK Digital, LLC documentation, operation instructions and user manuals in electronic format specifying the characteristics and functionalities of the Platform Services.

1.8 "High Safety Required Use" has the meaning as set out in Section 2.6

1.9 "Inappropriate Content" means Client Content and/or Client Applications, which infringe the intellectual property rights of others, defame or denigrate persons, contain malicious code, violate any privacy rights, are misleading or deceptive, or are otherwise unlawful.

1.10 "Major Anomaly" means an incident where the Platform Services are unavailable for more than five (5) minutes, access is denied, or a substantial component fails and no workaround is available.

1.11 "Minor Anomaly" means any other incident on the Platform Services which cannot be classified as Major Anomaly.

1.12 "Platform" means the cloud hosting platform provided and operated by a sub-contractor of AK Digital, LLC.

1.13 "Platform Services" means the provision and operation of software services by AK Digital, LLC comprising a platform and applications for software development and operation.

1.14 "Reseller" means a legal entity, acting as AK Digital, LLC authorized agent.

1.15 "Runtimes" means the software necessary to provide an environment for the execution of Client Applications.

1.16 "Service(s)" means any other service distinct from the Platform Service ordered by the Client from AK Digital, LLC.

1.17 "Third Party" means any person or entity, which does not qualify as a User.

2. SUBJECT MATTER AND SCOPE OF THE PLATFORM SERVICES

2.1 In accordance with the Contract AK Digital, LLC provides and operates the Platform Services during the term of the Contract to allow and enable Client and its Users to design, develop, operate and use Client Applications.

2.2 AK Digital, LLC shall provide the Platform Services to Client with due care and skill and in accordance with the provisions of the Contract.

2.3 AK Digital, LLC shall endeavor to provide appropriate protection (e.g. by using SSL or TLS encryption), but cannot completely ensure the security of submission of Client Content to the Platform Services.

2.4 The provision and operation of the Platform Services shall take place on the Platform. The service provider has implemented reasonable security measures against any harm to data integrity.

2.5 AK Digital, LLC shall provide daily backups of the Platform Services, Client Content, Client Data and Client Applications.

2.6 High Risk Activity - Client acknowledges that the Platform Services are designed for general use. The Platform Services are not designed for use accompanying fatal risks that could lead directly to death, personal injury, or severe physical damage ("High Safety Required Use"). Client shall not use the Platform Services for High Safety Required Use without explicit prior written approval.

3. USAGE REQUIREMENTS AS WELL AS DUTY OF COOPERATION AND CARE

3.1 Client shall be solely responsible for ensuring that it and its Users comply with the technical and system requirements for the use of the Platform Services during the term of the Contract.

3.2 Client and its Users may log into the Platform Services via their respective User account credentials.

3.3 Client shall support AK Digital, LLC in the framework of the provision and operation of the Platform Services within a reasonable scope.

3.4 AK Digital, LLC will take all reasonable measures to protect the Platform Services and its users. Client is solely responsible for the security of its own information security system.

3.5 Client guarantees AK Digital, LLC that it and its Users use the Platform Services solely in accordance with the provisions of the Contract and not in a way that infringes applicable law.

3.6 AK Digital, LLC does not review Client Content for legality, accurateness and completeness before it is made available.

4. USER ACCOUNTS AND DUTIES OF CARE

4.1 AK Digital, LLC provides Client with access to the Platform Services by creation of one (1) Client Administrator account.

4.2 Client and its Users may only access the Platform Services within the limits of the metrics subscribed by Client.

4.3 Client shall carefully protect access to its User account credentials.

4.4 Client shall be responsible for all actions executed via its User accounts within the Platform Services.

5. BLOCKING AND SUSPENSION OF USER ACCOUNTS

5.1 In the event that a User violates applicable law or the provisions of the Contract, AK Digital, LLC shall be entitled to warn Client, block individual Client Content or Client Applications, or block the corresponding User account.

5.2 AK Digital, LLC shall also be entitled to permanently block the respective User account if the User has severely or repeatedly violated the Contract.

5.3 The blocked User may not use the Platform Services via another existing or newly created User account.

5.4 AK Digital, LLC reserves the right to temporarily suspend a Client Application if it poses a security risk to the Platform Services.

6. INTELLECTUAL PROPERTY AND RIGHTS OF USE OF PLATFORM SERVICES

6.1 Upon payment of all fees due, AK Digital, LLC grants to Client and its Users a non-exclusive, non-transferable, non-sublicensable worldwide right to use the Platform Services.

6.2 AK Digital, LLC is and remains the sole owner or licensee of all intellectual property rights to the Platform Services.

6.3 AK Digital, LLC will retain the benefit of any improvement of its own processes, expertise and skills.

6.4 Client and its Users are not entitled without prior explicit written approval to decompile, disassemble, reverse engineer, or access the source code of the Platform Services.

6.5 Client shall maintain all proprietary notices being contained in the Platform Services without any changes.

7. INTELLECTUAL PROPERTY AND RIGHTS OF USE OF CLIENT CONTENT

7.1 Client shall retain all intellectual property rights to Client Content and Client Applications, except for Runtimes.

7.2 By submitting Client Content and/or Client Applications, Client grants AK Digital, LLC a free, non-exclusive and worldwide right to use them exclusively in connection with the provision and operation of the Platform Services.

8. AVAILABILITY OF THE PLATFORM SERVICES

8.1 AK Digital, LLC will ensure accessibility to the Platform Services with an availability rate of ninety-nine point nine (99.9) percent per month.

8.2 The Platform Services are deemed as non-available when Client does not have any access based on a problem specifically arising from the Platform Services.

8.3 In case of non-availability scenarios, penalty credits and termination rights of Client shall apply:
(a) If availability is between 99% and 99.9%, Client receives three (3) days of Platform Services free of charge.
(b) If availability is between 95% and 99%, Client receives ten (10) days free of charge.
(c) If availability is less than 95%, Client receives thirty (30) days free of charge.
(d) After three (3) consecutive days of non-availability, Client is entitled to terminate for cause.

9. SUPPORT SERVICE LEVELS AND DUTY OF COOPERATION

9.1 Client Administrator notifies AK Digital, LLC via its web portal of any anomaly affecting the Platform Services. AK Digital, LLC will take note of this twenty-four/seven (24/7).

9.2 AK Digital, LLC will begin handling an anomaly within four (4) hours following its receipt.

9.3 With respect to Major Anomalies, the objective is to eliminate the anomaly within twenty-four (24) hours. With respect to Minor Anomalies, within seventy-two (72) hours.

9.4 Client should immediately report any anomaly to AK Digital, LLC and send all necessary information to identify or reproduce the anomaly.

9.5 AK Digital, LLC may not be held liable for any anomaly pertaining to hardware or software malfunction of Client, improper use, or force majeure.

9.6 Client is solely and exclusively liable for maintenance of the Client Applications.

10. SERVICE EVALUATION PERIOD

10.1 Upon request, AK Digital, LLC may grant Client a right of use for test and evaluation of the Platform Services for a period not exceeding thirty (30) days.

10.2 Following the test and evaluation period, Client Content and Client Applications may no longer be used unless Client has concluded the Contract and paid the corresponding fees.

11. FEES, DEFAULT PAYMENT, BLOCKING OF PLATFORM SERVICES

11.1 Client shall pay annual fees for the use of the Platform Services as defined in the Order Form.

11.2 Invoices are due and payable within thirty (30) days from the date of invoice. All prices are in euros (EUR), excluding VAT.

11.3 AK Digital, LLC shall have the right to block Client's access to the Platform Services if Client is in default with agreed annual payments.

11.4 For payments past due, Client shall pay interest at lesser of 1.5% per month or the highest rate available under applicable law.

11.5 Offsetting by Client is excluded unless its counter-claim is legally established.

12. TERM AND TERMINATION

12.1 The Contract becomes effective as of the date of signature by the Parties of the Order Form and shall automatically renew for extension terms of twelve (12) months, until either Party terminates ninety (90) days before the expiration.

12.2 Each Party may terminate the Contract for cause at any time, if the other Party is merged, consolidated, sells substantially all of its assets, has insolvency proceedings initiated, or is liquidated or dissolved.

12.3 The notice of termination requires written form.

13. REVERSIBILITY

In the event of expiry or termination, AK Digital, LLC shall maintain limited access for a maximum of sixty (60) days for Client to reclaim all Client Content and Client Applications. Beyond this term, all Client Content and Client Applications will be destroyed. AK Digital, LLC will retain documents for 30 calendar days from expiry.

14. CONFIDENTIALITY

14.1 The Parties may disclose or make available to each other Confidential Information.

14.2 Neither Party receiving Confidential Information may disclose it to any Third Parties without prior explicit approval, except to employees, directors, consultants, affiliates to the extent necessary to fulfil the Contract purposes.

14.3 No confidentiality obligation applies to information that was previously known, is publicly known, is obtained from a Third Party, is independently developed, or must be disclosed pursuant to law.

14.4 This Section 14 shall continue to apply for five (5) years after termination.

14.5 Each Party must destroy or return all Confidential Information if requested upon termination.

15. DATA PROTECTION

AK Digital, LLC qualifies as data processor (Art. 4 no. 8 GDPR) and processes Client Data on behalf of Client in accordance with Schedule DPA. As data controller (Art. 4 no. 7 GDPR) Client is and remains responsible for the legality of processing Client Data.

16. LIABILITY

16.1 AK Digital, LLC liability for free-of-charge services is limited to any damages caused by willful intent and gross negligence.

16.2 For chargeable services: AK Digital, LLC is fully liable for direct damage in the case of willful intent or gross negligence. Any liability for indirect damages is excluded. In the case of negligent breach of cardinal duties, liability is limited to foreseeable damages typical of the Contract. AK Digital, LLC liability shall be limited to the double amount of Client's payments for a period of twelve (12) months.

17. INDEMNIFICATION

17.1 Client shall indemnify AK Digital, LLC from all Third Party claims based on violation of the Contract or claims that Client Content and/or Client Applications violate intellectual property rights or other rights.

17.2 In the event of a Third Party claim, Client shall provide AK Digital, LLC with all information required for the examination of the claim.

17.3 AK Digital, LLC ensures that the Platform Services are free of Third-Party rights which significantly impair or exclude the use of the Platform Services.

17.4 Should the use of the Platform Services be impaired by Third-Party intellectual property rights, AK Digital, LLC may modify the Platform Services, obtain authorization, or withdraw from the Contract.

17.5 In case of assertion of Third-Party claims, AK Digital, LLC shall indemnify Client from unappealable costs and compensation claims, provided that Client has informed AK Digital, LLC immediately and gives AK Digital, LLC sole control over the defense.

18. VARIATION

18.1 AK Digital, LLC reserves the right to amend the provisions of the Contract, provided that such amendments are reasonable and acceptable to Client. Unless Client objects within ninety (90) days from receipt of the relevant notification, the amendments shall be deemed accepted.

18.2 AK Digital, LLC may make commercially reasonable updates to the Platform Services regularly. If a material change is made, AK Digital, LLC will inform Client in advance.

18.3 Deprecation Policy - AK Digital, LLC will announce if it intends to discontinue or make backwards incompatible changes to the Platform Services. Any versions labeled "Early Access", "Alpha", or "Beta" are excluded from this policy.

19. LINKS

Except for websites on which AK Digital, LLC provides the Platform Services, AK Digital, LLC is not liable for the content or privacy practices of any websites to which the websites of the Platform Services provide links.

20. FINAL PROVISIONS

20.1 Client refrains from recruiting or employing any employee or sub-contractor of AK Digital, LLC for the entire term of the Contract and for twenty-four (24) months following its end.

20.2 Client expressly authorizes AK Digital, LLC to cite and publish its company name and logo in the framework of AK Digital, LLC promotion.

20.3 The Contract will be governed solely by the laws of the State of Texas, including without limitation applicable federal law. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of Dallas, Texas.

20.4 All modifications to the Contract require written form.

20.5 THE EXCLUSIVE VENUE AND JURISDICTION REGARDING ALL DISPUTES ARE THE COURTS OF DALLAS, TEXAS.

20.6 Should any provision be found invalid, unenforceable or unlawful, this will not affect the full validity of the remaining provisions.

20.7 In the case of any conflict or ambiguity between different provisions:
(a) The Order Form shall prevail over the General Terms and Conditions.
(b) The body of Schedule DPA shall prevail over its Annexes.
(c) Schedule DPA shall prevail where data protection law is affected.
(d) Other contracts concluded for execution of the Service shall prevail over this Contract.