Dozuki Terms and Conditions
Version 1.6 June 14, 2018
Terms and Conditions:
1.1. Dozuki shall, upon terms and conditions contained herein, provide to Customer a license to use Dozuki® software for the primary purpose of Customer creating and publishing documentation on a public or private site for use by Customer’s designated personnel, contractors, and representatives (the “Service(s)”). The Services are further described herein.
Dozuki will deliver the following “Deliverables”:
2.1. In accordance with Section 1.1 above, Dozuki shall provide to Customer a Dozuki site.
2.2. Dozuki shall consistently meet its requirements set forth herein for the duration of service term.
2.3. If from time to time, Customer selects an additional feature listed in the feature list, Dozuki shall provide such feature to Customer within seven (7) days of receipt of Customer’s selection, or another time period if mutually agreed.
2.4. Dozuki will create and host a web-based Dozuki site on behalf of Customer within seven (7) days of execution of the services order form with a guaranteed 99.95% uptime as agreed in the Service Level Agreement (“SLA”).
2.5. Within seven (7) days of Customer’s request, Dozuki shall provide to Customer an XML file dump of all of the Customer’s content up to two (2) times per calendar year.
2.6. Throughout the duration of this Agreement, Dozuki shall on a daily basis backup Customer’s content to Dozuki’s server(s).
3.1. All property and assets whether tangible or intangible, provided by Customer to Dozuki shall remain Customer property and shall be accessible only to Customer’s defined parties.
4.1. Delivery and Invoice Schedule. Delivery and invoicing for Services and Deliverables shall be as follows:
4.1.1. Dozuki shall provide the Services on an on-demand basis.
4.1.2. Dozuki shall invoice Customer for the agreed monthly or annual total set forth in the order form (“Service Fee”).
4.1.3. Dozuki will then invoice Customer on a monthly or annual basis for the Service Fees.
4.1.4. Payment is due thirty (30) days from Customer’s receipt of the invoice. If the scope of Services is materially changed, the parties reserve the right upon mutual written agreement to amend the services order form.
5. Confidentiality / Non-Disclosure
Dozuki agrees that the existence of this Agreement and any information Dozuki receives or reviews during the performance of the Services hereunder, including without limitation any information, whether orally or in writing, concerning Customer’s past, present, and future research, marketing, development, designs, operations and business activities (collectively, the "Confidential Information"), is proprietary and confidential to Customer. Dozuki shall keep the Confidential Information strictly confidential and shall not disclose it to any third party or use it directly or indirectly for any purpose except the performance of this Agreement. This Section 5 shall not apply to information of Customer that: (a) is known to Dozuki prior to its first receipt of such information from Customer, provided that such information is not subject to another confidentiality agreement of which Dozuki and Customer are a party, (b) is generally known to the public prior to its receipt by Dozuki, (c) after receipt from Customer, becomes available to the public other than as a result of an unauthorized disclosure by any of the Dozuki’s directors, officers, employees, agents, or advisors, (d) is lawfully received by Dozuki from a third party having the right to disclose such information, (e) is disclosed by Dozuki with the prior written approval of Customer, or (f) is independently developed by Dozuki without a breach of this Agreement. Dozuki agrees to return all Confidential Information and all compilations or summaries or synopsis thereof (and all copies of all of the foregoing) in Dozuki’s possession to Customer upon the termination of this Agreement. Upon termination of this Agreement, Dozuki shall either: (x) return such records (and all copies thereof) to Customer or (y), if so requested by Customer, dispose of same in accordance with Customer’s instructions. Dozuki’s obligations under this Section 5 shall survive any termination of this Agreement for a period of one (1) year. This Section 5 is intended to supplement any Nondisclosure Agreement or Confidentiality Agreement that Dozuki may have previously executed for the benefit of Customer. In the event of a conflict between this Section 5 and any such previous agreement, this Section 5 shall control.
The service term shall commence on the Effective Date of the services order form and automatically renew on a monthly, quarterly, or annual basis—depending on the term specified in the Service Agreement Order Form. This Agreement may be terminated by Customer, without cause, upon thirty (30) days prior written notice. Either party may terminate this Agreement for cause if the defaulting party fails to cure its breach within thirty (30) days after receiving written notice. In the case of termination by either party, notwithstanding anything in this Agreement to the contrary, Customer shall be entitled to its data in accordance with Sections 7.3.2 and 7.3.3 of the SLA.
7. Governing Law
This Agreement shall be governed by the laws of the State of California, without reference to its rules regarding conflicts of law. The parties hereby expressly agree to submit to the exclusive jurisdiction of the federal and state courts of the State of California, San Luis Obispo County, for the purpose of resolving any dispute arising from or in connection with this Agreement.
This Agreement may not be modified, amended, waived, superseded, or rescinded, except by mutual agreement in writing, executed by the parties hereto.
A party’s failure to exercise any rights or remedies under this Agreement shall not be deemed a waiver or forfeiture of that party’s right to exercise such rights or remedies in subsequent events.
Section 5 (Confidentiality) and Section 7 (Governing Law) will survive any termination of this Agreement.
Service Level Agreement:
This Service Level Agreement (“SLA”) is incorporated by reference into the Services Order Form (the “Agreement”) between DZKICorp, Inc d/b/a Dozuki (“Dozuki”) and the customer and governs the provision of the Service by Dozuki to CUSTOMER.
1. Service Availability
1.1 Standards. The Service shall perform in accordance with the following standards:
1.2 Failure to Achieve Availability Standards. If Availability falls below the above standard during any calendar month, CUSTOMER may elect to receive a credit from Dozuki against fees and payments due for the months following any month in which Availability does not meet the standard, as liquidated damages and not as a penalty, an amount equal to twelve percent (12%) of the fees and payments due to Dozuki from CUSTOMER for that month. If Availability falls below the above standard for any three (3) months during a six-month period, CUSTOMER may terminate the Agreement in accordance with Section 7.3 below and Dozuki will promptly refund all fees for Services not delivered as of the date of the termination notice.
2. Technical Support & Problem Resolution
2.1 Technical Support. Dozuki will provide telephone and email assistance, as detailed in the Agreement, for general advice and technical support, as well as technical assistance and remediation for operational issues as further described below.
2.2 Problem Resolution. Dozuki will correct all problems that are reported by CUSTOMER or of which Dozuki otherwise becomes aware in accordance with the following table.
The priority level of the problems reported by CUSTOMER shall be determined by Dozuki. If Dozuki fails to comply with this Section 2 in any given month, CUSTOMER, at CUSTOMER’s option, will be entitled to (a) promptly receive a credit or refund of all Service Fees for the month of such noncompliance or (b) terminate the Services and receive a refund of the prorated portion of any prepaid, unearned Service Fees.
2.3 Contingencies. Dozuki will, in accordance with industry best practice, maintain detailed and comprehensive contingency plans against events that could affect the ability of Dozuki to provide support in accordance with this SLA.
2.4 Additional Support. Dozuki will provide such additional technical assistance and remediation services to CUSTOMER, at no additional cost to CUSTOMER, as Dozuki may provide from time to time to its other customers of the Service.
3.1 Unless otherwise defined herein, all capitalized terms shall have the same meaning ascribed to them in the Agreement. Dozuki (hereafter “Dozuki”, “We” or ”Our”) provides its Service to CUSTOMER through its website located at www.dozuki.com (the “Site”), subject to the terms contained in this SLA.
3.2 By signing this SLA, CUSTOMER (hereafter “CUSTOMER”, “You” or “Your”) and Dozuki represent and acknowledge that it has understood, and agrees to be bound by the terms of this SLA. CUSTOMER represents and acknowledges that the information CUSTOMER provides in registering to the Service is accurate, complete, and is CUSTOMER’s or within CUSTOMER’s right to use. If CUSTOMER is entering into these terms on behalf of a company or another legal entity, CUSTOMER represents that CUSTOMER has the authority to bind such entity and its affiliates to these terms, in which case the terms “you,” “your” or related terms herein shall refer to such entity and its affiliates. If CUSTOMER does not have such authority, or if CUSTOMER does not agree with these terms, CUSTOMER must not accept these terms and may not use the Service.
3.3 CUSTOMER and Dozuki acknowledge that this SLA constitutes a contract between CUSTOMER and Dozuki and that this SLA governs CUSTOMER use of the Service and Dozuki’s provision of such Service and supersedes any other agreements between CUSTOMER and Dozuki.
3.4 Dozuki represents that the Service will be fully operational and available at least 99.95% excluding only scheduled maintenance downtime. The services provided to CUSTOMER through the Site are based on the plan purchased. The Service includes all software, data, text, images, sounds, videos, and other content made available through the Site, or via the Dozuki API (collectively, “Content”). Any new features added to or augmenting the Service are also subject to these terms.
3.5 Without CUSTOMER written consent, which CUSTOMER agrees not to withhold unreasonably, Dozuki shall not provide any part of the Service to CUSTOMER from outside the United States, or use any servers, systems, or personnel located outside of the United States to deliver any part of the Service to CUSTOMER.
3.6 Subject to the terms and conditions of this SLA, CUSTOMER agrees to access and use the Service only for CUSTOMER business purposes as contemplated herein.
3.7 Subject only to CUSTOMER limited right to access and use the Service as expressly granted to CUSTOMER here, all rights, title, and interest in and to the Service and its components, including all related intellectual property rights, will remain with and belong exclusively to Dozuki.
3.8 Account Terms
- Users must be 13 years or older to use this Service.
- Users must be a human. Accounts registered by “bots” or other automated methods are not permitted.
- Users must provide their legal full name, a valid email address, and any other information required in order to complete the signup process.
- A single User login may be shared and used by multiple people.
- CUSTOMER may create separate logins for as many people as CUSTOMER would like.
- CUSTOMER is responsible for maintaining the security of CUSTOMER user accounts and passwords. Dozuki cannot and will not be liable for any loss or damage from CUSTOMER failure to comply with this security obligation.
- CUSTOMER is responsible for all Content posted and activity that occurs under CUSTOMER site (even when Content is posted by other people who have user accounts on CUSTOMER site).
- CUSTOMER may not use the Service for any illegal or unauthorized purpose. CUSTOMER must not, in the use of the Service, violate any laws in CUSTOMER’s jurisdiction (including but not limited to copyright laws).
3.9 CUSTOMER agrees not to (a) modify, adapt or hack the Service to falsely imply any sponsorship or association with Dozuki, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks; (b) use the Service in any unlawful manner, including but not limited to violation of any person's privacy rights, infringing any person’s intellectual property rights, or sending spam or otherwise duplicative or unsolicited messages in violation of applicable law; (c) use the Service in any manner that knowingly interferes with or disrupts the integrity or performance of the Service and its components; (d) use the Service to knowingly post, upload, link to, send or store any content that is unlawful, racist, hateful, pornographic, obscene, discriminatory, or contains any viruses, malware, Trojan horses, time bombs, or any other similar harmful software; or (e) use the Service in violation of terms contained herein.
3.10 CUSTOMER is responsible for all information, data, text, messages or other materials that CUSTOMER posts or are otherwise transmitted via the Service. CUSTOMER is responsible for maintaining the confidentiality of CUSTOMER login and account and is fully responsible for any and all activities that occur under CUSTOMER login or account.
3.11 Either party’s failure to enforce at any time any provision of the terms contained herein does not constitute a waiver of that provision or of any other provision of this SLA.
4. Privacy and Security
4.1 In providing CUSTOMER the Service, We shall maintain appropriate administrative, physical and technical safeguards to protect the security, confidentiality, and integrity of CUSTOMER data and the personal data of CUSTOMER end-users.
4.3 Dozuki will conduct its own audits pertaining to the Service consistent with the audit practices of well-managed companies that perform services similar to the Service. If applicable, Dozuki will perform a security audit at least annually. To the extent the resulting audit report reveals an actual or potentially adverse effect on CUSTOMER, Dozuki will correct any errors or problems identified in the audit report as soon as reasonably possible.
4.4 When requested by CUSTOMER and at least once per calendar quarter, Dozuki will perform a vulnerability scan or penetration test on all internet facing applications and systems relevant to the Service and disclose the results to CUSTOMER.
5. Intellectual Property
5.1 Each party shall maintain all rights, title and interest in and to all its respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”). The rights granted to CUSTOMER to use the Service under this SLA do not convey any additional rights in the Service, or in any Intellectual Property Rights associated therewith. Dozuki shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Service or otherwise use any suggestions, enhancement requests, recommendations or other feedback we receive from CUSTOMER. Dozuki, and Dozuki’s other product and service names, and logos used or displayed on the Service are registered or unregistered trademarks of Dozuki (collectively, “Marks”), and CUSTOMER may only use such Marks to identify CUSTOMER as a customer and user of the Service; provided CUSTOMER does not attempt, now or in the future, to claim any rights in the Marks, degrade the distinctiveness of the Marks, or use the Marks to disparage or misrepresent Dozuki, its services or products.
6. Third Party Service
6.1 External Sites. The Service may contain links to, or otherwise may allow CUSTOMER to connect to and use certain third party products, services or software under separate terms and conditions (collectively, “Other Services”) in conjunction with Our Service. If CUSTOMER uses Other Services, CUSTOMER use is governed solely by the terms and conditions of such Other Services. We do not endorse, are not responsible for such Other Services, their content or the manner in which they handle CUSTOMER data. Dozuki is not liable for any damage or loss caused or alleged to be caused by, or in connection with CUSTOMER access or use of any such Other Services, or CUSTOMER reliance on the privacy practices or other policies of such Other Services.
6.2 Integration. The Service may contain features that enable various Other Services (such as social media services like Facebook and Twitter) to be directly integrated into CUSTOMER Dozuki experience. To take advantage of these features, CUSTOMER will be required to register for or log into such Other Services on their respective websites. By enabling third party services within the Service, CUSTOMER is allowing Dozuki to pass CUSTOMER information to these Other Services for this purpose.
6.3 Translations. This service may contain translations powered by Google. Google disclaims all warranties related to the translations, express or implied, including any warranties of accuracy, reliability, and any implied warranties of merchantability, fitness for a particular purpose and non-infringement.
7. Accounts and Billing
7.1 Billing Terms for Invoiced Accounts.
- The Service shall be invoiced in accordance with the Article 4 of the Agreement. There will be no refunds or credits for partial months of Service or downgrade refunds except as provided in the Agreement. In order to treat everyone equally, no exceptions will be made.
- All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities.
- Downgrading CUSTOMER Service may cause the loss of Content, features, or capacity of CUSTOMER’s account. Dozuki does not accept any liability for such loss.
7.1.1 If a CUSTOMER fails to fulfill their obligation to pay the invoice within the terms specified in their services agreement Dozuki will attempt to process a credit card payment using any billing information we have on file.
7.3 Cancellation and Termination
7.3.1 CUSTOMER may terminate the Service, in whole or in part, for convenience (i.e. without cause) at any time by giving Dozuki at least thirty (30) days’ prior written notice from the effective date of termination and specifying the terminated Service. Dozuki will refund any prepaid unused months of service within 45 days of the termination date. Dozuki may not suspend the Services for any reason prior to the effective date of termination.
7.3.2 CUSTOMER has the right to request an XML file dump of all of CUSTOMER content and a PDF dump of all CUSTOMER guides, and Dozuki shall provide such data dumps within seven (7) days of receiving such notice from CUSTOMER.
7.3.3 All of CUSTOMER’s Content will be deleted within thirty (30) days of the effective termination date; provided, however, that prior to Dozuki deleting such data, that Dozuki shall first obtain CUSTOMER’s written authorization that any data dumps requested by CUSTOMER pursuant to Section 7.3.2 above were successfully received by CUSTOMER. Such CUSTOMER authorization shall not be unreasonably withheld or delayed. The parties understand that CUSTOMER’S Content cannot be recovered once CUSTOMER Content is deleted.
7.4 Modifications to the Service and Prices
7.4.1 Prices of all Services, including but not limited to monthly Service Fees, are subject to change upon ninety (90) days’ notice from Dozuki. Such notice may be provided at any time by posting the changes to the Dozuki website (www.dozuki.com) or the Service itself.
7.4.2. Notwithstanding anything to the contrary herein, Dozuki may not increase the prices for the Service more than once in any rolling twelve-month period and the amount of each increase may not exceed three percent (3%) of the then-current prices.
7.4.3 Dozuki shall not be liable to CUSTOMER or to any third party for any modification, price change, suspension or discontinuance of the Service.
7.5 Late payments
- If CUSTOMER fails to pay the Service Fee on time in accordance with the Agreement, or if CUSTOMER’s credit card payment information is entered in error or does not go through for processing and CUSTOMER does not update payment information upon Our request, CUSTOMER’s entire Service may be suspended or canceled.
7.6 Billing Privacy.
Unless otherwise stated, Our charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction having jurisdiction over the sale of Services (collectively “Taxes”). CUSTOMER is responsible for paying Taxes in connection with the sale of Services except those assessable against Dozuki based on Dozuki’s income. We will invoice CUSTOMER for such Taxes if we believe we have a legal obligation to do so. Notwithstanding anything to the contrary herein, (a) CUSTOMER shall not be responsible for any tax imposed on the delivery of the Service by any tax authorities outside the United States, and (b) each party shall be responsible for any taxes on property it owns or leases, for franchise and privilege taxes on its business, for taxes based on net income or gross receipts, and employee-related taxes with respect to its personnel.
8.1 EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICE, INCLUDING THE SITE AND CONTENT, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND DOZUKI EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGE THAT DOZUKI DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, AND NO INFORMATION OR ADVICE OBTAINED BY CUSTOMER FROM DOZUKI OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
8.2 MALWARE. DOZUKI REPRESENTS AND WARRANTS THAT IT WILL NOT INTRODUCE MALWARE INTO CUSTOMER (OR ANY OF CUSTOMER AFFILIATES’) SYSTEMS OR DATA AND THAT DOZUKI WILL EXCERISE COMMERCIALLY REASONABLE EFFORTS TO PREVENT MALWARE FROM BEING SO INTRODUCED. IF MALWARE IS FOUND TO HAVE BEEN INTRODUCED INTO CUSTOMER (OR ANY OF CUSTOMER AFFILIATES’) SYSTEMS OR DATA AS A RESULT OF A BREACH OF THE FOREGOING WARRANTY, DOZUKI WILL, AT NO ADDITIONAL CHARGE, ASSIST CUSTOMER IN ERADICATING THE MALWARE AND REVERSING ITS EFFECTS AND, IF THE MALWARE CAUSES A LOSS OF DATA OR OPERATIONAL EFFICIENCY, TO ASSIST CUSTOMER IN MITIGATING AND REVERSING SUCH LOSSES. ‘MALWARE’ MEANS PROGRAM CODE OR PROGRAMMING INSTRUCTION(S) OR SET(S) OF INSTRUCTIONS INTENTIONALLY DESIGNED TO DISRUPT, DISABLE, HARM, INTERFERE WITH OR OTHERWISE ADVERSELY AFFECT COMPUTER PROGRAMS, DATA FILES OR OPERATIONS, OR OTHER CODE TYPICALLY DESCRIBED AS A VIRUS, TROJAN HORSE, WORM, BACK DOOR OR OTHER TYPE OF HARMFUL CODE.
8.3 PERFORMANCE OF THE SERVICE. DOZUKI REPRESENTS AND WARRANTS THAT IT WILL PERFORM THE SERVICE (i) IN ACCORDANCE WITH THIS AGREEMENT, (ii) IN A GOOD, PROFESSIONAL AND WORKMANLIKE MANNER, FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP AND IN ACCORDANCE WITH INDUSTRY STANDARDS, (iii) IN COMPLIANCE WITH ALL LAWS; (iv) EFFICIENTLY AND IN A COST-EFFECTIVE MANNER SUBJECT TO THE REQUIREMENTS OF THE AGREEMENT; AND (v) USING QUALIFIED PERSONNEL WITH SUITABLE TRAINING, EDUCATION, EXPERIENCE, AND SKILL TO PERFORM THE SERVICE IN ACCORDANCE WITH THE TIMING AND OTHER REQUIREMENTS OF THIS SLA.
8.4 DEBARMENT. FOR THE FULL TERM OF THE AGREEMENT, DOZUKI REPRESENTS AND WARRANTS THAT IT SHALL NOT BE: (i) DEBARRED, SUSPENDED, EXCLUDED OR DISQUALIFIED FROM DOING BUSINESS WITH THE UNITED STATES GOVERNMENT; OR (ii) LISTED ON THE EXCLUDED PARTIES LIST SYSTEM MAINTAINED BY THE GENERAL SERVICES ADMINISTRATION OF THE UNITED STATES GOVERNMENT (FOUND AT WWW.EPLS.GOV). DOZUKI AGREES TO IMMEDIATELY NOTIFY CUSTOMER IN WRITING IN THE EVENT DOZUKI BREACHES ANY OF ITS REPRESENTATIONS AND WARRANTIES OR HAS REASON TO BELIEVE THAT IT WILL BECOME IN BREACH OF ANY SUCH REPRESENTATIONS AND WARRANTIES.
9. LIMITATION OF LIABILITY
9.1 NO CONSEQUENTIAL DAMAGES. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THIS SLA, OR A PARTY’S AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY SUCH PARTY IN CONNECTION WITH THESE TERMS OR THE SERVICE, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
9.2 LIMITS ON MONETARY DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS BUT SUBJECT TO SECTION 10.1, NEITHER PARTY’S (INCLUDING ANY OF ITS AFFILIATES) AGGREGATE LIABILITY, FOR DAMAGES (MONETARY OR OTHERWISE) UNDER THESE TERMS CLAIMED BY CUSTOMER OR ANY THIRD PARTY ARISING FROM OUR SERVICE, SHALL NOT EXCEED ACTUAL DAMAGES INCURRED. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 9.2 IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE TERMS AND CONDITIONS OF THE AGREEMENT, WHICH WOULD HAVE DIFFERED IF THE PARTIES WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS.
9.3 Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to CUSTOMER. IN THESE STATES, DOZUKI’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
10.1 Indemnification by Dozuki. Dozuki will indemnify and hold CUSTOMER harmless, from and against any claim against CUSTOMER by reason of CUSTOMER use of the Service as permitted hereunder, brought by a third party alleging that the Service infringes a valid patent or copyright, or misappropriates a third party’s trade secret (such claims, collectively, “Claim”). Dozuki shall, at its expense, defend such Claim and pay damages finally awarded against CUSTOMER in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Dozuki for such defense, provided that (i) CUSTOMER promptly notify Dozuki of the threat or notice of such Claim, (ii) Dozuki will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such Claim, and (iii) CUSTOMER fully cooperate with Dozuki in connection therewith. If CUSTOMER’s use of the Service has become, or in Dozuki’s opinion is likely to become, the subject of any such Claim, Dozuki may at its option and expense (a) procure for CUSTOMER the right to continue using the Service as set forth hereunder; (b) replace or modify the Service to make it non-infringing; or (c) if options (a) or (b) are not reasonably practicable, terminate this SLA and repay CUSTOMER all Service Fees paid. Dozuki will have no liability or obligation under this Section 10.1 with respect to any Claim if such claim is caused in whole or in part by (i) compliance with designs, data, instructions or specifications provided by CUSTOMER; (ii) modification of the Service by anyone other than Dozuki; or (iii) the combination, operation or use of the Service with other hardware or software where the Service would not by itself be infringing. The provisions of this Section 10.1 state the sole, exclusive and entire liability of Dozuki to CUSTOMER and constitute CUSTOMER’s sole remedy with respect to a Claim brought by reason of CUSTOMER’s permitted use of the Service and notwithstanding anything in this SLA to the contract, the foregoing indemnity is not subject to the limitations or exclusions of liability set forth in Section 9 above.
11. Assignment and Revisions
11.1 Either party may assign or transfer this SLA, in whole or in part, without restriction, provided that the assignee agrees to be fully bound by the terms hereunder. This SLA may not be modified, amended, waived, superseded, or rescinded, except by mutual agreement in writing, executed by the parties hereto.
12.1 If any provision of this SLA is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this SLA shall remain in effect.
13. Export Compliance
13.1 Certain Content and software components of the Service may be subject to U.S. export control and economic sanctions laws. If CUSTOMER is subject to U.S. laws, CUSTOMER agrees to comply with all such laws and regulations as they relate to such software and Content, and access and use of the Service. CUSTOMER shall not access or use the Service if CUSTOMER is located in Burma (Republic of the Union of Myanmar), Cuba, Libya, North Korea, Sudan, or Syria (the “Prohibited Jurisdictions”), and CUSTOMER shall also not provide access to the Service to any government, entity or individual located in the Prohibited Jurisdictions.
14.1 Sections 3 (General Conditions/Access and Use of the Service), 5 (Intellectual Property Rights), 7 (Billing, Plan Modifications and Payments), 8 (Disclaimer of Warranties), 9 (Limitation of Liability), 10 (Indemnification), 11 (Assignment; Entire Agreement; Revisions), 12 (Severability), 13 (Export Compliance and Use Restrictions), and 15 (Governing Law) will survive any termination of this SLA.
15. Governing Law
15.1 This SLA shall be governed by the laws of the State of California, without reference to their rules regarding conflicts of law. CUSTOMER hereby expressly agrees to submit to the exclusive personal jurisdiction of the federal and state courts of the State of California, San Luis Obispo County, for the purpose of resolving any dispute arising from or in connection with this SLA.
16. Federal Government End Use Provisions
16.1 If CUSTOMER is a U.S. federal government end user, this Service is a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation” as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, this Service is licensed to CUSTOMER with only those rights as provided under the terms and conditions of this SLA.
17. Entire Agreement and Counterparts
17.1 This SLA constitutes the entire agreement regarding the subject matter hereof between the parties and supersedes all prior agreements and understandings, both oral and written. This SLA may be executed in counterparts, each of which when so executed and delivered will be deemed an original, and all of which taken together will constitute one and the same instrument.