Terms and Conditions
IMPORTANT - PLEASE READ CAREFULLY - THESE TERMS & CONDITIONS (THESE "TERMS" OR THIS "AGREEMENT") CREATE A LEGALLY BINDING AGREEMENT WHICH GOVERNS YOUR USE OF CONTENT AND SERVICES OFFERED THROUGH THE SPLICKY.COM WEBSITE (HEREINAFTER “WEBSITE”). TROUGH USE OF THIS CONTENT AND SERVICES YOU ACCEPT AND AGREE TO BE BOUND, WITHOUT LIMITATION OR QUALIFICATION, BY THESE TERMS. IF YOU DO NOT ACCEPT ANY OF THESE TERMS, PLEASE DO NOT USE THE CONTENT AND SERVICES ON THIS WEBSITE.
Thank you for choosing Splicky owned and operated by Goldbach Digital Services AG, Küsnacht (CH).
Splicky is an online plattform located at www.splicky.com (the "Website"), that assists Advertisers and Agencies in the purchase and placement of advertising market space by connecting the User to publishers (the "Service" or "Services"). Splicky is the new Demand-Side Platform (DSP) available for the mobile channel using proprietary Real-Time Advertising (RTA) technology. Our mobile DSP enables Advertisers to deliver targeted and effective mobile advertising campaigns in real time with complete transparency, and it enables Agencies to manage their clients' targeted and effective mobile advertising campaigns in real time with complete transparency. The Website is owned by Jaduda GmbH, Berlin, and operated for online use by Goldbach Digital Services, Küsnacht ("GDS," "Company," "we," "our," or "us"). The terms "you," "your," and "yours" "Customer," "User," and "Advertiser" refer to anyone accessing on content and using Services on the Website in any manner, and shall mean You individually (in the event you do not represent a business entity or other juristic person), or the company or entity registering with Us. You and We may also be individually referred to herein as a "Party" and collectively as "Parties."
The following definitions shall have the meaning defined herein throughout this Agreement unless expressly stated otherwise:
- "Advertisement(s)" shall mean Content which a Customer has licensed or produced or otherwise has authority to display, the purpose of which is to promote or market, and which includes but shall not be limited to text, rich media, photographs, messages, information, data, tags, graphics, video, audio, underlying code, other material or combination thereof, and which is caused to be served on a publisher's site or exchange.
- "Content" shall have the same meaning as and shall be used interchangeably with Advertisement(s), except as expressly stated otherwise, and in such cases shall not be required to be served on a publisher's site or exchange.
- "Customer" shall mean a person or entity that is authorized to acquire Digital Media Inventory for Advertisements and shall include "Advertiser," "Advertising Agency," or "Agency," or any agent, employee, or other party authorized to act on behalf of the Customer, and the terms shall be used interchangeably in this Agreement unless expressly stated otherwise.
- "Advertising Data" shall mean all data provided by or on behalf of Customer and any data identifying Customer or the Advertiser or relating to the Advertisements that is collected from any campaigns or websites of Customer or Advertiser during the course of this Agreement, and may, from time to time, be referred to as "Customer Data."
- "Business Hours" mean Monday through Friday from 8:00 a.m. to 6:00 p.m. CET, exclusive of Swiss holidays and federal or banking holidays in Switzerland.
- "Digital Media Inventory" means the digital advertising inventory sold or acquired through the Service and any advertising exchanges.
- "Total Cost" means the total amount quoted for a bid through the Website or the Service or otherwise agreed to be spent related to the acquisition of Digital Media Inventory for the Customer via the Service. The bid shall include the cost to acquire media inventory and any other costs associated with acquiring the media in accordance with Customer's specified parameters.
- "GDS Data" means the data used by the Service for bidding and delivery, and the data derived from the performance of the Services that does not specifically identify Customer or any Advertiser, the data relating to any error, issue or enhancement to the operation or use of the Services, and the data that GDS would have regardless of Customer's or Advertiser's use of the Services.
- "Bid" shall mean the process by which a Customer offers to acquire selected Digital Media Inventory through the Service for the placement of Advertisement(s).
2. Change to Service and Terms of Service
We have the right at any time, in our sole discretion and with reasonable notice posted on the Website site and/or sent to you at the email address provided in the registration data, to revise, update, or otherwise modify this Terms and Conditions as well as the content and Services available on the Website ("Changes" or "Modifications"). We reserve the right to make any such changes effective immediately to maintain the security and integrity of the Website or our users' access information or to comply with any laws or regulations, and to provide you with electronic or written notice within thirty (30) days after such change. You may reject changes by discontinuing use of the Website and Services to which such changes relate. Your continued use of the Website or Services after we have made such Modifications will constitute your acceptance of and agreement to such changes, and you will be bound by the new or modified terms. We may, from time to time, perform maintenance upon the Website or Services resulting in interrupted service, delays or errors in the Website or Services. We will attempt to provide prior notice of scheduled maintenance but cannot guarantee that such notice will be provided. Please review these terms and conditions on a regular basis, as we have the right to change them at any time without advance notice. Any change will be effective when posted on the Website or when we notify you by other means. Your continued use of the Services and this Website indicates your agreement to the changes.
3. Changes to Service Level
Service Levels shall be reviewed periodically and each party shall cooperate in good faith to adapt the Services provided as quantities increase or change in any way. Any changes to the service levels shall be mutually agreed to by the Parties in writing.
4. Inactive Accounts
GDS reserves the right to cancel or disable accounts and terminate accounts that are inactive for a period of twenty-four (24) months or longer. "Inactive" shall be defined as failure to log into the Website for a period of 24 months. GDS will contact you via one of the methods supplied by you when you registered and established your account thirty (30) days before end of the period that is 24 months since you have failed to log into the Website and notify you of the imminent closure or deletion of your account, and within 30 days after 24 months have elapsed since you last logged into the Website.
5. Authorized Use
Subject to your acceptance and compliance with these Terms, we grant you a non-exclusive, non-transferable, limited right to access, use and display the Website and the materials thereon, and the Services provided that you fully comply with these Terms. You shall not interfere or attempt to interfere with the operation of the Website or the Services in any way through any means or device including, but not limited to, spamming, hacking, uploading computer viruses or time bombs, or the means expressly prohibited by these Terms. Except as expressly provided herein or otherwise allowed by us, you may not use the Website or the Services for any other commercial purpose.
- Users. The Service is reserved for the use of Users. Unauthorized use of the Service is prohibited. As part of the Service, you will receive login credentials. You agree to: (i) provide true, accurate, current, and complete information as prompted by the registration form for login credentials; and (ii) maintain and update such information to keep it true, accurate, current, and complete at all times. We reserve the right to delete your Account without warning if you are found to have misrepresented any of the registration information submitted. You must use all commercially reasonable efforts to prevent unauthorized used of, or access to, the Service, including safeguarding any login credentials applying to Your Account. You alone are responsible for maintaining the confidentiality of any login credentials. You agree not to use the login credentials of another user at any time or to disclose your login credentials to any third party. You agree to notify GDS immediately if you suspect any unauthorized use of your login credentials or access to your account. You are solely responsible for any and all use of your account.
- Law & Terms. To the extent applicable to its performance under this Agreement, You shall at all times comply with all applicable laws and regulations with respect to its use or provision of the Services and its marketing and promoting of the Services. You agree and acknowledge that (i) the Services and GDS's operation of the Services are subject to the policies of publishers and exchanges and duly negotiated and executed contracts with those publishers and exchanges; (ii) amendments to this Agreement may become necessary from time to time to implement the policy change of a publisher or exchange; and (iii) the Parties shall timely implement such policy change, and where necessary, amend this Agreement to reflect such change (which amendment may be evidenced by electronic contract).
- Authorized Use - Publisher Compliance. GDS has disclosed and Customer understands, acknowledges, and agrees that the Services and GDS's operation of the Services are subject to the policies, terms, and guidelines of publishers and exchanges and duly negotiated and executed contracts with those publishers and exchanges. These duly negotiated and executed contracts, and the terms, policies, and guidelines therein are binding on GDS and are not merely advisory or precatory in nature, and are incorporated into the terms and conditions of this Agreement. These policies, terms, and guidelines include, by example, and not by way of limitation: (i) Content shall not violate any applicable law or regulation, nor shall Content infringe in any manner upon the copyright, patent, trademark, trade secret, or any other intellectual property right of any third party; (ii) Content shall not contain any obscene, defamatory, illegal, deceptive, gambling-related, or hateful content or subject matter or message; and (iii) Content will be free of any "virus", "Trojan Horse", "worm", "disabling", "lock out" or any other malicious code as such terms are understood in the computer industry. Any failure by GDS to comply with the policies, terms or guidelines in its contracts with the publishers or exchanges may constitute a breach of GDS's contract with the respective publisher or exchange. To the extent that GDS determines, in its sole and absolute discretion, that content provided by the Customer to GDS does not satisfy the terms, policies, or guidelines contained in the contracts agreed to by GDS and the respective Publishers or Exchanges, or to the extent that GDS is advised of the same by the respective Publisher or Exchange, GDS reserves the right to remove the Content, and shall not be liable to Customer for any damages or other legal or equitable relief for such determination or removal.
6. Intellectual Property Rights
Except as expressly set forth herein, this Agreement does not grant either party any rights, implied or otherwise, to the other's content, Site, Advertisement or any of the other's intellectual property. The aforesaid intellectual property of each party is and shall be protected by copyright, trademark, patent, trade secret and other laws, and each party shall own and retain all rights in its respective intellectual property. The aforesaid intellectual property shall include, but not necessarily be limited to, Customer Data and GDS Data.
- Customer Data. Customer hereby grants GDS a perpetual, non-exclusive, fully-paid, royalty-free, fully sublicensable, transferable, irrevocable worldwide license to use, modify, publicly perform, publicly display, reproduce, prepare derivative works of and distribute Customer Data (in whole or in part) for the purposes of (i) providing the Service to Customer pursuant to and limited by the terms of this Agreement; and (ii) limited use of data (A) for general reporting purposes, including the compilation of statistics and of case studies, that may be provided to existing and potential customers, (B) for scheduling and optimization of content and advertising across all carriers, and (C) if required by court order, law or governmental or regulatory agency, except where the use is pursuant to subsection (ii)(A) herein, the Customer Data shall be considered the Confidential Information (as defined below) of the Customer hereunder and shall only be disclosed such that the Customer Data cannot be used to identify the Customer, and where the use is pursuant to subsection (ii)(C) herein, the Customer Data shall be considered the Confidential Information of the Customer hereunder and shall only be disclosed such that the Customer Data cannot be used to identify the Customer to the extent allowable by the law, or order or binding request from the governmental or regulatory agency, and in which case GDS will provide prior written notice to Customer of such disclosure and the opportunity to object to such disclosure or to seek confidential treatment of such Customer Data.
- GDS Data. GDS grants Customer for the duration of the contractual relationship a temporary limited, non-exclusive, fully-paid, royalty-free, fully sublicensable, transferable, irrevocable worldwide license to use, modify, publicly perform, publicly display, reproduce, prepare derivative works of and distribute GDS Data (in whole or in part) for the sole purpose of and only to the extent necessary for using the Service. GDS shall use the GDS Data solely: (i) to operate, manage, maintain and enhance the Service, and (ii) to improve the Service's method of predicting impression-level market clearing prices and winning bid prices for Service users.
7. Confidential Information
As used herein, the term "Confidential Information" shall mean all non-public information disclosed by either Party hereunder, whether written or oral, or the result of a tangible inspection conducted by or on behalf of either Party or disclosed by either Party, that is designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. All Confidential Information shall remain the exclusive property of the disclosing party, and the receiving party shall have no rights, by license or otherwise, to use the Confidential Information except as expressly provided herein. No patent, copyright, trademark or other proprietary right is licensed, granted or otherwise conveyed by this Agreement with respect to the Confidential Information. The parties agree that they shall: (i) not use the Confidential Information for any other reason other than for the purpose as agreed by both parties herein; (ii) restrict disclosure of Confidential Information only to the their officers, directors, agents and employees who, prior to disclosure, (a) are informed of the confidential nature of the information, and (b) have acknowledged and agreed to hold the Confidential Information strictly confidential in accordance with the terms of this Agreement; (iii) protect Confidential Information using the same degree of care as it uses to protect its own information of similar nature; and (iv) promptly notify the other party of the discovery of an unauthorized use or disclosure of Confidential Information. Except as reasonably required for the Agreement, the recipient will not copy or reproduce Confidential Information of the disclosing party without the disclosing party's prior written consent. The recipient will return or destroy all Confidential Information (including copies) that the disclosing party made available to the recipient under this Agreement upon request by the disclosing party, or upon Termination or Expiration of this Agreement. Confidential Information does not include information which: (i) has been or becomes published or is now, or in the future, in the public domain without breach of this Agreement or breach of a similar agreement by a third-party; (ii) prior to disclosure hereunder, is properly within the legitimate possession of the receiving party which can be verified by independent evidence; (iii) subsequent to disclosure hereunder, is lawfully received from a third party having rights therein without restriction of third party's or the receiving party's rights to disseminate the information and without notice of any restriction against its further disclosure; or (iv) is independently developed by the Receiving Party through persons who have not had, either directly or indirectly, access to or knowledge of such Confidential Information which can be verified by independent evidence. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given notice to the other Party and shall have provided such assistance as may be reasonably requested to limit such disclosure. No Party shall issue a press release or other public statement regarding this Agreement without the other party's prior written consent.
8. Covenants of Parties. Customer
9. Covenants of Parties. GDS
GDS hereby covenants and agrees that, subject to Customer's compliance with this Agreement, the terms and conditions contained herein, and all policies incorporated by reference, and subject to all disclaimer of warranty and limitations of liability contained in this Agreement, GDS will (i) provide Customer with direct access to the Services; (ii) allow Customer to purchase Digital Media Inventory and upload Content through the Services; and (iii) make technical support for the Services available during Business Hours as defined in this Agreement. GDS further covenants and agrees that: (i) the Services comply with all copyright, patent, trademark, and other intellectual property and other applicable laws; (ii) GDS shall make commercially reasonable efforts to ensure the protection of data and Confidential Information of Customer disclosed to or accessible by GDS, and shall promptly notify Customer in writing in the event any unauthorized access to any Customer information is suspected; and (iii) shall make commercially reasonable efforts to ensure that the Services are free of any "virus", "Trojan Horse", "worm", "disabling", "time-bomb," "lock out" or any other malicious code as such terms are understood. GDS covenants, acknowledges, and agrees that it is responsible for any acts or omissions of any of its employees, agents, or subcontractors, and that it will use commercially reasonable efforts to ensure such employees, agents, and subcontractors comply with the terms of this Agreement.
- Data and Analysis. GDS shall maintain applications to monitor operations and performance of the Services and to supply information to allow GDS to perform predictive capacity planning for the Services.
- Service and Backups. GDS will back up Customer Data on a basis that is reasonable and consistent with industry custom, standards, and practices. In the event of a major system outage, GDS will recover backed-up Customer Data to the most recently successful data back up. GDS will store copies of encrypted Customer Data backups at both an on-site and a secure third party contracted offsite location. Access to these backups will be limited to authorized personnel as defined by GDS. Any special request by Customer for access to or restoration of backup Customer Data as a business service shall be subject to a separate agreement between the Parties. Any special request by Customer for deletion of all records to be purged from all production and backup Customer Data as a business service shall be subject to a separate agreement between the Parties. GDS maintains contractual service level agreements with its systems providers that allow internal recovery of impacted systems within generally accepted industry standard timeframes. If GDS determines it cannot continue to operate the Services from the GDS data center due to catastrophic events, GDS will exercise a standing agreement with a third party supplier of disaster recovery services located off premises.
- Payment. Your use of the Services requires prepayment of all applicable fees. The following provisions apply to payments and payment methods ("Payment Method" or "Method"). You must prepay for the Services using PayPal. Other payment options may be available, so please contact us for additional information. Payments will be billed to you in Swiss Francs, and will be charged to or debited against the PayPal account you provide us after you provide your payment information. When you supply Company with a designated Method and related information, You authorize Company to bill and/or pay that Method for any and all charges, fees and/or payments (as applicable) experienced in connection with the Service. The terms of your designated Methods are determined by any agreement(s) between You and the provider of the Methods. If your payment and registration information is not accurate, current, and complete and you do not notify us promptly when such information changes, or if your Payment Method is declined or otherwise not accepted, we may suspend or terminate your account and refuse any use of the Services in our sole and absolute discretion. If your access to the Website is terminated, you may not be able to access the information and data in your account or to download them after the termination becomes effective. Company accepts no liability for information that is deleted due to an invalid Payment Method, or any other suspension, termination, or refusal concerning your account or use of the Services. If you do not notify us of updates to your Payment Method (e.g., expiration date, if any), to avoid interruption of your service, we may participate in programs supported by your card provider (e.g., updater services, recurring billing programs, etc.) to try to update your payment information, and you authorize us to continue billing your account with the updated information that we obtain. Company may, upon notice required by applicable laws, at any time change: (i) the amount of or basis for determining any fee, charge and/or payment, (ii) institute new fees or charges with respect to the Service, (iii) Methods that Company accepts, or (iv) the timing for billing of any fees or payments. Company may provide additional funds and/or incentives to Customers using the Service in its sole and absolute discretion. Any such additional funds and/or incentives are non-refundable and not redeemable for cash, and may not be credited towards other services. You represent and warrant (i) that any and all information You provide in connection with the Methods is valid, accurate, current, and complete, and (ii) to maintain and promptly update that information to keep it true, accurate, current, and complete. You also authorize Company to update your information with data Company obtains from the issuer of your designated Methods. You authorize Company to retain and store your information until such time you revoke this authorization. Any revocation of this authorization will become effective when all charges and fees associated with your use of the Service have been fully satisfied, as determined by Company. Your revocation of this authorization will have no effect on your liability for charges and fees that You have incurred in connection with Your use of the Service prior to such revocation. Company may share any bank card or related billing and payment information that Customer provides to Us with third parties such as payment processors solely for the purposes of effecting payments to and from, and servicing, Your Account. Company shall not be liable for any use or disclosure of such information by such third parties.
- Taxes. All fees payable in connection with the Service selected by you are (i) exclusive of any applicable sales, use, gross receipts, value added, or similar transaction based taxes, and (ii) will be paid without deduction or withholding of any present or future taxes. To the extent that GDS is required to collect and/or remit any such taxes in connection with the Service selected by You, You shall reimburse GDS for such taxes. You agree to pay all applicable taxes or charges imposed by any government entity in connection with your use of the Service. All fees owed by User to any third party based on the activity covered by this Agreement are solely the responsibility of you and User, jointly and severally.
11. Representations and Warranties
12. Warranty Disclaimer
YOUR USE OF THIS WEBSITE, THE SERVICES, YOUR ACCOUNT ON THIS WEBSITE, THE SOFTWARE SUPPORTING AND OPERATING THIS WEBSITE, AND CONTENT IS ENTIRELY AT YOUR OWN RISK. EXCEPT AS DESCRIBED IN THESE TERMS AND CONDITIONS, THE SERVICES AND THIS WEBSITE ARE PROVIDED 'AS IS.' TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GDS, ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, AND OTHER AUTHORIZED THIRD PARTIES (COLLECTIVELY, 'AGENTS') DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY THAT THE SERVICES OR WEBSITE IS FIT FOR A PARTICULAR PURPOSE, TITLE, UP-TIME, MERCHANTABILITY, DATA LOSS, NON-INTERFERENCE WITH OR NONINFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, OR THE ACCURACY, RELIABILITY, QUALITY, PERFORMANCE OR CONTENT IN OR LINKED TO THE SERVICES OR THE WEBSITE. GDS DOES NOT MAKE ANY REPRESENTATIONS REGARDING THE BENEFITS OR RESULTS THAT CUSTOMER, ITS ADVERTISERS OR ANY THIRD PARTIES SHALL RECEIVE FROM THE GDS SERVICE. GDS AND ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, AND OTHER AUTHORIZED THIRD PARTIES DO NOT WARRANT THAT THE SERVICES OR WEBSITE IS SECURE, FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, THEFT OR DESTRUCTION. IF THE EXCLUSIONS FOR IMPLIED WARRANTIES DO NOT APPLY TO YOU, ANY IMPLIED WARRANTIES ARE LIMITED TO 60 DAYS FROM THE DATE OF PURCHASE OR DELIVERY OF THE SERVICES, WHICHEVER IS SOONER. GDS, ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, AND OTHER AUTHORIZED THIRD PARTIES DISCLAIM ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE SERVICES OR WEBSITE WILL SATISFY OR ENSURE COMPLIANCE WITH ANY LEGAL OBLIGATIONS OR LAWS OR REGULATIONS.
13. Service Level Agreement/Troubleshooting
GDS shall make good faith, commercially reasonable efforts to notify Customer by electronic notification of any planned outages of the Services for maintenance purposes at least 24 hours prior to the planned outage. For all other outages or concerns with the Services, Customer may notify GDS through the Website at any time, and GDS's support services shall address the problem at any time during Business Hours as defined in this Agreement. GDS shall use commercially reasonable efforts to put in place and maintain procedures to make the Services available on a basis that meets customarily acceptable standards, for Customer's use, but shall reserve the right to conduct emergency maintenance and schedule regular maintenance from time to time and shall attempt to provide notice of at least 24 hours regarding regular maintenance, and as soon as is practically possible concerning emergency maintenance or repair.
15. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ENTIRE LIABILITY OF GDS, ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, AND OTHER AUTHORIZED THIRD PARTIES FOR ALL CLAIMS RELATING TO THIS AGREEMENT OR YOUR USE OF THE SERVICES OR THE WEBSITE SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE BID FROM WHICH THE CLAIM AROSE. SUBJECT TO APPLICABLE LAW, GDS, ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, AND OTHER AUTHORIZED THIRD PARTIES ARE NOT LIABLE FOR ANY OF THE FOLLOWING: (A) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES; (B) DAMAGES RELATING TO FAILURES OF TELECOMMUNICATIONS, THE INTERNET, ELECTRONIC COMMUNICATIONS, CORRUPTION, SECURITY, LOSS OR THEFT OF DATA, VIRUSES, SPYWARE, LOSS OF BUSINESS, REVENUE, PROFITS OR INVESTMENT, (C) USE OF SOFTWARE OR HARDWARE THAT DOES NOT MEET GDS SYSTEMS REQUIREMENTS, (D) ERRORS IN CALCULATIONS, PROGRAMMING OR ALGORITHMS, OR (E) INFORMATION OBTAINED FROM THIRD PARTIES. THE ABOVE LIMITATIONS APPLY EVEN IF GDS AND ITS AFFILIATES AND SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS AGREEMENT SETS FORTH THE ENTIRE LIABILITY OF GDS, ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, AND OTHER AUTHORIZED THIRD PARTIES AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE SERVICES, THE WEBSITE, AND THEIR USE. EACH PARTY ACKNOWLEDGES THAT THE COMPENSATION PAYABLE HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THE AGREEMENT AND THAT EACH PARTY WOULD NOT ENTER INTO THE AGREEMENT WITHOUT THESE LIMITATIONS ON LIABILITY.
The Agreement may be terminated immediately by either party in the event that: (i) the other party (to the extent permitted by law) files or has filed against it a petition in bankruptcy that is not dismissed within sixty (60) days of filing, makes or causes to be made a general assignment for the benefit of creditors, is adjudicated bankrupt or becomes the subject of any voluntary or involuntary proceeding in bankruptcy, liquidation, dissolution, receivership, attachment or composition or general assignment for the benefit of creditors, provided however that such proceeding was not dismissed within thirty (30) days after it was instituted; or (ii) the other party commits a material breach of any of the terms or conditions contained in the Agreement, which breach is not cured within a reasonable time after we notify you of the violation, but in no case more than thirty (30) days after we notify you of the violation. Moreover, Customer may terminate its use of the Services upon forty-eight (48) hours' notice, provided that GDS shall make all commercially reasonable efforts to terminate such Services within twenty-four (24) hours of such notice.
17. Effect of Termination
Upon termination of this Agreement, each Party's revocable license(s) to the other Party shall automatically and immediately be revoked, and you must immediately stop using the Services and this Website. The terms and conditions that by their nature should reasonably continue after termination of Service will survive and remain in effect even if the Service is terminated. You are responsible for archiving or backing up your Content, data and information upon termination of the Services. Unless otherwise agreed in writing, we will not send you a copy of your Content or data but will make available means and functionalities for you to download your Content or data, subject to our obligation to return or destroy Confidential Information as set out elsewhere in this Agreement. If your account or the Service is terminated, within 48 hours we will delete or make anonymous all data and markers that identify or reference your contact information and identity residing on the Website server. Each Party understands that the rights of termination or expiration hereunder are absolute. Without limiting the generality of the foregoing, each Party acknowledges and agrees that the other Party has no obligation to agree to or approve any renewal or extension of this Agreement, and that neither Party has any basis for expecting, and has received no assurance, that its business relationship with the other Party will continue beyond the Term. In the event that Customer terminates the Agreement, and at the time of termination Customer is not in violation of the Agreement or any term, condition, covenant, or obligation contained herein or incorporated by reference, GDS shall refund to Customer any Payment made by Customer that was unused at the time of termination, subject to a Termination Fee of Fifty Swiss Francs (50.00 CHF).
18. Governing Law, Jurisdiction & Venue
Swiss law governs these terms and conditions without regard to its conflicts of laws provisions. You agree to the exclusive jurisdiction of ordinary courts in Zurich, Switzerland. We do not represent that the Services are appropriate or available for use in all countries. You are accessing the Services and this Website on your own initiative and you are responsible for compliance with all applicable laws. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
The Agreement shall be binding upon and inure to the benefit of the parties and their permitted successors and assigns. Neither party may assign, transfer, sublicense, or delegate this Agreement or any part thereof to any other person or entity without the prior written consent of the other, except that each party may assign the Agreement in connection with a transfer of all or substantially all of its business, whether by sale, merger or otherwise. Any assignment in violation of this Section shall be null and void.
20. Entire Agreement
No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing by the party making the waiver.
This Agreement may be executed in multiple counterparts, and each such duly executed counterpart shall be deemed to be an original of this Agreement, provided however that each Party shall receive a counterpart fully executed by the other Party.
23. Relationship of Parties
This Agreement does not constitute, create, or give effect to any employer/employee or franchiser/franchisee relationship, nor any joint venture, partnership, limited partnership, or agency between the parties, and the parties hereby acknowledge that no other facts of relations exist that would constitute, create, or give to effect any such relationship between them.
24. Force Majeure
Neither Party shall be liable by reason of failure or delay in the performance of its obligations hereunder on account of telecommunications, Internet or network failure or interruption, results of computer hacking, Acts of God, fires, storms, war, governmental action, labor conditions, earthquakes, natural disasters or any other cause which is beyond the reasonable control of Company.
If any provision of this Agreement is held to be unlawful, void or unenforceable, that provision shall be deemed severable from this Agreement, and that section shall be removed without affecting the remainder of these terms and conditions. The remaining terms and conditions will be valid and enforceable.
Notice shall be deemed given upon receipt via personal delivery, email, delivery by a nationally recognized overnight delivery service (e.g., FedEx), or postage prepaid by certified or registered mail, return receipt requested by the relevant post office. Notices must be tendered to the addresses set forth in this Agreement or to such other address as a Party may later specify in writing and in accordance with this Notice provision.