In the event this Agreement is terminated (other than by reason of your breach), HammerKit will make available to you a file of the Web Sites and your Data within 30 days of termination if you so request at the time of termination. You agree and acknowledge that HammerKit has no obligation to retain the Web Sites and your Data, and may delete such Web Sites and your Data, more than 30 days after termination.
Termination for Cause
Any breach of your payment obligations or unauthorised use of the HammerKit Technology or Service will be deemed a material breach of this Agreement. HammerKit, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement. You agree and acknowledge that HammerKit has no obligation to retain the Web Sites and your Data, and may delete such Web Sites and your Data, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.
REPRESENTATIONS AND DISCLAIMER OF WARRANTY.
Each party represents to the other that it has: (i) the legal power and authority to enter into this Agreement; and (ii) not previously entered into any agreement or understanding which conflicts with any rights or obligations set forth in this Agreement.
You represent and warrant that all information provided by you in connection with your registration is accurate and reliable, that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your use of the HammerKit Technology and Your Web Sites do not directly or indirectly infringe the legal rights of a third party.
HammerKit represents that it: (i) owns the Service; and (ii) there is no claim pending or, to HammerKit's knowledge, threatened against HammerKit regarding ownership of the Service or infringement by the Service of any copyright, patent, trade secret or other intellectual property rights of any third party. Your sole remedy for breach of the representation in clause (ii) of this Subsection will be as specified in Indemnification section of this Agreement.
HAMMERKIT AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. HAMMERKIT AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT: (I) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (II) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS OR RESULT IN REVENUES OR PROFITS; (III) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (V) ERRORS OR DEFECTS WILL BE CORRECTED; OR (VI) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY HAMMERKIT OR ITS LICENSORS
INDEMNIFICATION.
You will indemnify and hold HammerKit, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that Your Web Sites infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you, provided in any such case that HammerKit: (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release HammerKit of all liability and such settlement does not affect HammerKit's business or the Service); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim.
HammerKit will, at its expense, defend or settle any third party claim brought against you alleging that the Service or any part thereof, when used by you within the scope of this Agreement, infringes a European Union patent, copyright, trade secret or other intellectual property right of any third party ("IP Claim"). This obligation is subject to you notifying HammerKit promptly in writing of the IP Claim (but in no event later than ten (10) days following your receipt of notice of such IP Claim), giving HammerKit exclusive control of the defense and settlement thereof, and providing reasonable assistance and authority necessary to perform HammerKit's obligations hereunder, at HammerKit's expense.
HammerKit will have no duty to defend any IP Claim to the extent such IP Claim is based on: (i) use of a superseded release of the Service or portion thereof, if such infringement would have been avoided by the use of a current release of the Service and HammerKit timely notified you of the availability of the non-infringing release at no additional cost; (ii) the combination, operation, or use of the Service furnished under this Agreement with programs or data not furnished by HammerKit or with hardware or operating system Software other than the hardware platform and operating system with which the Service is designed to function, if such infringement would have been avoided by the use of the Service without such programs, data, hardware or operating system; (iii) compliance with designs, plans or specifications furnished by or on your behalf; (iv) modification or attempted modification of the Service by anyone except HammerKit or use or distribution of such modifications; or (v) your use of the Service in a manner that results in defamation, violates the privacy rights of individuals, transmits material in violation of any applicable law, rule or regulation, or uses any proprietary third party content without legally binding consent of such third party.
To the extent an IP Claim is excluded from HammerKit's defense obligation by reason of any of the sections above ("Excluded Claims"), you will, at your sole expense, defend or settle the Excluded Claim. This obligation is subject to HammerKit notifying you promptly in writing of the Excluded Claim (but in no event later than ten (10) days following HammerKit receipt of notice of such Excluded Claim), giving you exclusive control of the defense thereof, and providing reasonable assistance and authority necessary to perform your obligations hereunder, at your expense. HammerKit will have the right to approve any settlement which is reasonably likely to materially and adversely affect other licensees of HammerKit. The provisions of this Subsection 4.4 set forth your entire liability and the sole remedies of HammerKit with respect to Excluded Claims.
HammerKit may elect to assume control of the defense and settlement of any Excluded Claim with counsel of its choosing; provided however, that if you will not have breached its defense and settlement obligations hereunder, you will have no obligation to pay the costs and expenses of such HammerKit-controlled defense or any settlement, judgment, award or damages in connection with such Excluded Claim.
In the event that use of the Service becomes, or in HammerKit's reasonable opinion is likely to become, the subject of an IP Claim other than an Excluded Claim, HammerKit will, at its option and expense: (a) obtain the continuing right to use the Service for you; (b) modify the Service so that it no longer infringes so long as the modified Service retains substantially similar functionality; or (c) replace it with a product that does not infringe and has substantially similar functionality. If none of these remedies are available on commercially reasonable terms, then HammerKit may terminate the license and refund the unamortized portion of the license fees paid (if any) for the infringing Service prorated over a sixty (60)-month period.
THE PROVISIONS OF THIS SECTION SET FORTH THE ENTIRE LIABILITY AND THE SOLE REMEDIES OF THE PARTIES WITH RESPECT TO THIRD PARTY INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.
LIMITATIONS OF LIABILITY.
IN NO EVENT SHALL HAMMERKIT�S LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. YOU EXPRESSLY UNDERSTAND AND AGREE THAT HAMMERKIT AND ITS LICENSORS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF HAMMERKIT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICE RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICE PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE. YOU ALSO AGREE THAT HAMMERKIT WILL NOT BE LIABLE FOR ANY (A) INTERRUPTION OF BUSINESS, (B) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO THIS SITE OR THE WEB SITE(S) YOUR ACCESS THROUGH THE SERVICE; (C) DATA NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION; (D) UNAUTHORIZED ACCESS TO DATA ENTERED IN, OR BREACH OF ANY SECURITY MECHANISMS UTILIZED IN, THE SERVICE OR IN ANY RESTRICTED FIELD THEREIN; OR (E) EVENTS BEYOND HAMMERKIT'S REASONABLE CONTROL.
YOU SPECIFICALLY ACKNOWLEDGE THAT HAMMERKIT SHALL NOT BE LIABLE FOR USER�S OWN CONTENTS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY USING YOUR WEB SERVICES AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
HAMMERKIT'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. HAMMERKIT IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
MODIFICATIONS TO THE SERVICE
HammerKit reserves the right at any time and from time to time to modify the Service (or any part thereof) with or without notice. Should HammerKit choose to permanently discontinue the Service, HammerKit: (i) will send notification to your User Account via e-mail at least sixty (60) days prior to such discontinuance; and (ii) will post notification of this decision on the HammerKit web site at least thirty (30) days prior to such discontinuance. In such instance, you will be responsible for retrieving your data from the Service during that sixty (60) day period. You agree that HammerKit will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service, or for any resulting loss or destruction of Your Web Services that you place on the Service. HammerKit may specify from time to time the version(s) of related products required in order to use the Service (e.g. supported browser versions).
MODIFICATIONS TO THIS AGREEMENT
HammerKit may periodically change the terms of this Agreement. In the event HammerKit modifies this Agreement, HammerKit will post it to the HammerKit web site and promptly thereafter, notify your User Account via e-mail that such posting has been made. Your continued use of any of the Service after such modification will constitute your acceptance of this Agreement with the new modifications. If you do not agree to any of such changes, you may terminate this Agreement and immediately cease all access and use of the Service. You agree that such termination will be your exclusive remedy if you do not wish to abide by any changes to this Agreement. In addition, HammerKit may at any time introduce separate Agreements for users in certain jurisdictions and require users in these jurisdictions to agree to the separate Agreements. HammerKit may also require such users to agree that termination of the separate Agreements and cessation of all access and use of the Service would be their exclusive remedy if they do not wish to comply with the separate Agreement.
CONFIDENTIAL INFORMATION
The term "HammerKit's Confidential Information" will include any business, operational or technical information provided to you by HammerKit hereunder that is marked or otherwise identified as confidential or proprietary, or that you know or should know is confidential or proprietary. You acknowledge that HammerKit's Confidential Information contains valuable and confidential information that is proprietary to HammerKit and constitutes trade secrets and unpublished copyrighted material of HammerKit.
Confidential Information will not include any material or information that: (i) is or becomes a part of the public domain through no act or omission by the receiving party; (ii) is independently developed by employees of the receiving party without use or reference to the Confidential Information of the other party; (iii) is disclosed to the receiving party by a third party that, to the receiving party's knowledge, was not bound by a confidentiality obligation to the other party; or (iv) is demanded by a lawful order from any court or any body empowered to issue such an order. Each party agrees to notify the other promptly of the receipt of any such order, and to provide the other with a copy of such order and a reasonable opportunity to seek protective measures for the information demanded.
GENERAL TERMS.
The Service is controlled and offered by HammerKit from its facilities in Finland. HammerKit makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are responsible for compliance with local law.
You agree that: (i) the Service shall be based in Finland or any other location that HammerKit will decide to have them be based in; and (ii) the Service shall be deemed a passive Service that does not give rise to personal jurisdiction over HammerKit, either specific or general, in jurisdictions other than Finland. These Terms of use shall be governed by the internal substantive laws of Finland, without respect to its conflict of laws principles. Any claim or dispute between you and HammerKit that arises in whole or in part from the HammerKit Services shall be decided exclusively by a court of competent jurisdiction located in Helsinki Finland.
These Terms of use, together with the Privacy Policy at www.hammerkit.com/privacy and any other legal notices published by HammerKit on the Services, shall constitute the entire agreement between you and HammerKit concerning the Services. If any provision of these Terms of use is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of use, which shall remain in full force and effect. No waiver of any term of this these Terms of use shall be deemed a further or continuing waiver of such term or any other term, and HammerKit's failure to assert any right or provision under these Terms of use shall not constitute a waiver of such right or provision. HammerKit reserves the right to amend these Terms of use at any time and without notice, and it is your responsibility to review these Terms of use for any changes. Your use of the HammerKit Services following any amendment of these Terms of use will signify your assent to and acceptance of its revised terms.
NOTICES
HammerKit may give notice by means of a general notice on the HammerKit website, electronic mail to your e-mail address on record in your User Account information, or by written communication sent by first class mail or pre-paid post to your address on record in your User Account information. Such notice will be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to HammerKit at any time by any of the following: letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to HammerKit's addresses on its website.
ASSIGNMENT
This Agreement may not be assigned by you without the prior written approval of HammerKit but may be assigned without your consent by HammerKit to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section will be void.
LEGAL FEES AND COSTS
The prevailing party in any legal action or arbitration relating to this Agreement will be entitled to recover its attorneys' fees and litigation costs and expenses incurred in connection with such action or arbitration as part of the same proceeding.
SEVERABILITY
In the event that any provision of this Agreement is found invalid or unenforceable, it will be enforced to the extent permissible and the remainder of this Agreement will remain in full force and effect.
ENTIRE AGREEMENT
This Agreement constitutes the complete agreement between the parties with respect to its subject matter and supersedes all prior or contemporaneous discussions, representations, and proposals, written or oral, with respect to the subject matters discussed herein. No modification of this Agreement will be effective unless contained in writing and signed by an authorized representative of each party. Notwithstanding applicable law, electronic communications will not be deemed signed writings.
WAIVER
The failure of a party to prosecute its rights with respect to a breach hereunder will not constitute a waiver of the right to enforce its rights with respect to the same or any other breach.
STATUE OF LIMITATIONS
Any claim, demand or cause of action relating to this Agreement will be deemed barred and forever waived if legal action or arbitration is not commenced with respect to such claim, demand or cause of action within two (2) years after the aggrieved party first acquires actual notice of such claim, demand or cause of action.
IP CLAIMS
Any dispute, controversy or claim arising under, out of or relating to intellectual property rights of HammerKit as set forth in subsection 1.4 of this agreement shall be referred to and finally determined by arbitration in accordance with the WIPO Expedited Arbitration Rules. The arbitral tribunal shall consist of a sole arbitrator. The place of arbitration shall be in Helsinki, Finland. The language to be used in the arbitral proceedings shall be in English. The dispute, controversy of claim shall be decided in accordance with the law of the Finland.
For any questions related to this agreement, please contact:
Mark Sorsa-Leslie
Managing Director
HammerKit Oy
+358 40 580 1962
mark(at)hammerkit.com
www.hammerkit.com