Revision Date: February 23rd, 2015
These Terms of Service (“Terms”) are between Acision, Inc. (“Acision”) and Customer, or the company, or other entity that Customer represents (“Customer” or “Customer’s”).
These Terms govern Customer’s access to, and use of the Acision website, application program interface(s) (API(s), instructions, samples of code, technical documentation, and other related materials provided or made available by Acision (“Forge SDK or Forge SMS Services”) that enable Customer to implement the Acision live audio, video or messaging and chat services on a software application or website owned or controlled by Customer (“Customer’s Application”).
Subject to Customer’s full compliance with these Terms and the Acision Acceptable Use Policy (“AUP”), Acision grants Customer a limited, non-exclusive, revocable, non-transferable, and non-sub-licensable right and license to use the Forge SDK and Forge SMS Services solely in order to:
(a) develop Customer’s Application in accordance with these Terms; and
(b) offer and make the Forge SDK and Forge SMS Services available to Customer’s end-users in connection with their use of Customer’s Application in accordance with these Terms.
Customer may not install or use the Forge SDK and Forge SMS Services for any other purpose without Acision’s prior written consent.
Unless, expressly and unambiguously permitted by the License above (and then only to the extent so permitted), Customer shall not:
- resell, rent, lease, transfer, redistribute, sublicense, or otherwise make the Forge SDK and Forge SMS Services available, either directly or indirectly, to any third party;
- offer the Forge SDK and Forge SMS Services on a standalone basis;
- other than through the API configuration options provided by Acision, modify or alter any feature or functionality or user interface of the Forge SDK and Forge SMS Services;
- except as allowed by applicable law, reproduce, modify, alter, reverse engineer, disassemble, decompile, attempt to derive or allow a third party to attempt to derive the source code of, Forge SDK and Forge SMS Services;
- use the Forge SDK and Forge SMS Services in any unauthorized manner whatsoever, attempt to gain unauthorized access , or interfere or disrupt the performance including but not limited to, by trespass or burdening network capacity;
- design or permit Customer’s Application to disable, override or otherwise interfere with any Acision-implemented communications, consent panels, settings, alerts, warnings or the like, including but not limited to those intended to notify the end-user that his or her user data or location data is being collected or used, or intended to obtain consent for such collection or use; or
- use the Forge SDK and Forge SMS Services in connection with or to promote any product, service, or material that is, or that constitutes, promotes, or is used for the purpose of dealing in:
- spyware, adware, worms, Trojan horses, or other harmful or malicious, code, scripts or programs, abusive or otherwise offensive content, prostitution, pornography, adult entertainment, sexually explicit content (or any other content not appropriate for general audiences) gambling, illegal sweepstakes or contests, weapons and accessories, obscene, libellous, defamatory, disparaging, harassing, threatening, hateful, ethnically offensive, explosives, fireworks, body parts and bodily fluids, emergency or life-saving purposes, stolen items, hazardous materials, counterfeit items, items subject to U.S. or EU embargo, unlawful, or otherwise encourages conduct that would constitutes a criminal offense, gives rise to civil liability, violates the rights of any other party, violates any law, rule or regulation, that is otherwise inappropriate, non-transferable items, unsolicited mass distribution of email, multi-level marketing proposals, or violates the AUP;
- use the Forge SDK and Forge SMS Services in connection with or to promote any product service or material primarily directed to children aged 13 or under or that has children aged 13 and under as a significant proportion of its users;
- sell or otherwise display any advertising, promotion, or sponsorship within the Forge SDK and Forge SMS Services (pre-roll, post-rolls)
a) Acision is entitled to commission third parties with the fulfilment of its contractual obligations or to otherwise appoint third parties for this purpose.
b) Due to the technical circumstances, it is not possible to guarantee uninterrupted availability of the services to be delivered by Acision. Within the sphere of its responsibility, Acision will however ensure that the availability times agreed with the Customer are actually maintained. Details concerning maintenance, system availability and elimination of faults are regulated in the service agreement.
c) If the content of a service is typically performed in such a way that Acision commissions third parties with the actual subsequent performance, Acision performs this service by passing on a corresponding order in its own name to the third party (sub-contract). This applies particularly to the transmission of messages. These services will be performed by telecommunications service providers (particularly mobile network providers, internet providers, land line providers) or other service providers (particularly within the definition of Section 3(6) Telecommunications Act (TKG). In these cases the liability of Acision is limited to the careful selection and instruction to sub-contractors and to the assignment of Acision's applicable claims against third parties.
d) If the Customer wishes to avail of a Acision service, it must present Acision with a written description of its service, particularly the contents to be transmitted within the terms of the service, the planned sequence and the selected countries. Acision may demand additional information from the Customer. Acision is entitled to provide to other parties (sub-contractors) the information specified in sentences 1 and 2 (e.g. telecommunications service providers and other service providers) to the extent this is required for the delivery of the service in question.
e) The Customer is only able to avail of a service and publish its service, once Acision has notified the Customer of the activation. It cannot be guaranteed that a service will be activated as applied for. The activation of a service on the basis of the presented written description does not affect the Customer's liability for its legal responsibility for the service. The Customer must, in particular, comply with the codes of conduct and communications guidelines applicable in the relevant countries.
f) Following the commissioning of services, the Customer is duty bound to notify Acision in writing of any amendments to the description presented at the outset.
g) Upon request, the Customer will at any time promptly disclose the necessary information concerning the type and method of the use of the services commissioned. The Customer is aware that any delay to the disclosure of information may result in Acision sustaining significant losses.
h) Unless a separate agreement has been made, the Customer may only avail of Acision services for its own purposes, in particular, from using Acision services under commission or for the account of any third party, unless another agreement has been expressly made.
i) The Customer may use the call numbers and short code numbers provided to it solely for those activated services for which they are contractually provided. The entire communication of the Customer with end users within the terms of a service must be implemented by way of an interface provided to it by Acision for this purpose and upon disclosure of the designated sender identifier.
As between Acision and Customer, Acision (or its affiliates and third parties) own all right, title and interest in and to the Forge SDK and Forge SMS Services, and any derivative works or enhancements thereof, including but not limited to all worldwide intellectual property rights therein. Customer shall not act in any manner inconsistent with such ownership. Any of Acisions (or its affiliates and third parties) rights not expressly granted under these Terms are expressly reserved. Customer agrees not to challenge Acision’s (or its affiliates and third parties) ownership of the Forge SDK and Forge SMS Services, challenge the validity of the license granted under these Terms, or otherwise copy or exploit the Forge SDK and Forge SMS Services during or after the termination of this Agreement, except as expressly authorized under this Agreement. If Customer acquires any rights in the Forge SDK and Forge SMS Services, by operation of law or otherwise, Customer will, at no expense to Acision, immediately effectuate an assignment of such rights to Acision (or its affiliates and third parties).
As between Customer and Acision Customer retains all rights, title and interest in and to Customer’s Application, excluding the Forge SDK and Forge SMS Services, and any derivative works or enhancements thereof, including but not limited to all worldwide intellectual property rights therein.
Acision (or its affiliates) trademarks, include, but are not limited to the trademarks XURA, ACISION and FORGE (the “Acision Marks”).
Customer may display then-current Acision Marks solely in connection with Customer’s activities under these Terms and only in accordance with the branding guidelines. Customer shall not remove, change, or obscure any branding contained in the Forge SDK and Forge SMS Services or any notice of any Acision Marks; and Customer shall not misrepresent Customer’s relationship with Acision, nor present Customer as in any way affiliated with Acision.
Acision may, in its sole discretion, withdraw Customer’s right to use Acision Marks at any time and Customer shall immediately cease use of use of Acision Marks. Acision Marks may not be used in connection with anything which is illegal is likely, in any way, to harm Acision its products, services, or good reputation.
Customer grants Acision the right to use and display Customer’s trade names, trademarks, service marks, logos, domain names and similar marks for the purpose of advertising or promoting that Customer uses the Forge SDK and Forge SMS Services. Send any questions that Customer has on branding to: firstname.lastname@example.org
5. REVISIONS: TERMS; SERVICES; FEATURES AND FUNCTIONS
Acision reserves the right, in its sole discretion, at any time to revise or update the Forge SDK and Forge SMS Services; and to impose additional restrictions on the Forge SDK and Forge SMS Services and Customer consents to these revisions or updates. These additional revisions or restrictions, may include, without limitation (but are not limited to): (i) the right to impose volume limitations on access; (ii) the right to cap video or audio sessions conducted via Customer’s Application; (iii) any data retention policy on Acision’s servers; or (v) updating the fees and price structure charged for all or a portion of the Forge SDK and Forge SMS Services.
Acision determines what features and functions to include in the Forge SDK and Forge SMS Services and whether to make them optional or mandatory. These features and functions may change over time and it is Customer’s responsibility to ensure that Customer’s Application is appropriately performing with the then-current Forge SDK and Forge SMS Services. Customer shall update any code provided by Acision in connection with revisions or updates to the Forge SDK and Forge SMS Services in a prompt manner, after Acision makes them available.
6. DATA; INFORMATION
Data storage is not guaranteed by Acision and Acision shall have no liability whatsoever for any damages, liabilities, losses (including any loss of data or profits), costs, or expenses whatsoever that Customer may incur, in any manner arising from the loss, deletion, or failure to store any data or other information made available to Acision through the use of the Forge SDK and Forge SMS Services, including, but not limited to, all call records, audio recordings, transcriptions, SMS records, SMS message and other content.
If Customer uses the Forge SDK and Forge SMS Services or in combination with Customer’s Application, Customer is responsible for complying with all applicable laws, regulations, and guidelines will and indemnify, defend, and hold Acision harmless from and against any and all claims, damages, liabilities, losses, costs, and expenses whatsoever arising from Customer’s breach of this provision.
7. USE OF SERVICES; THIRD PARTY SERVICES
Customer is solely responsible for all use (whether authorized or not) of the Forge SDK and Forge SMS Services under Customer’s account, including for the quality and integrity of Customer’s Data and Customer’s Application. This includes, but is not limited, to being solely responsible for all data, information, communications, text, videos, recordings, sound, music, photographs, messages and other materials (“content”) that Customer or any of Customer’s Application end-users publish, display, upload, store or otherwise transmit in connection with the Forge SDK and Forge SMS Services.
Customer shall have a written agreement with each end-user that protects Acision’s rights to the same extent as these Terms. This end-user agreement must include terms concerning restrictions on use, protection of proprietary rights, disclaimer of warranties, indemnities, and limitation of liabilities.
Customer will maintain a policy for removing content and terminating repeat infringers that complies with the Digital Millennium Copyright Act and all other applicable laws.
Customer shall promptly notify Acision at email@example.com if Customer becomes aware of any breach of the terms of the end-user agreement that may affect Acision. Customer shall also take all commercially reasonable precautions to prevent unauthorized access to or use of the Forge SDK and Forge SMS Services and Customer shall promptly notify Acision if Customer becomes aware of any such unauthorized access or use.
To the extent any features available through the Forge SDK and Forge SMS Services are provided by third parties, Acision will make commercially reasonable efforts to communicate any requirements or policies of those third parties to Customer. Customer shall follow those requirements and policies.
Acision is not responsible for any claim based on any content transmitted or posted through the Forge SDK and Forge SMS Services by Customer or any end-user, or for any actions taken by Customer or any end-user. Customer acknowledges that Customer is solely responsible for monitoring and controlling illegal, abusive, or inappropriate behavior in the Forge SDK and Forge SMS Services in connection with Customer’s Application. Customer will regularly monitor and respond to reports of abuse, which includes terminating end-user accounts where appropriate.
Customer shall pay all applicable fees as set forth in the Forge SDK Fee Structure and Forge SMS Fee Structure.
Acision may change fees or fee structure at any-time. Changes to fees or fee structure will take effect immediately and without notice for customers utilizing the Forge SMS Services. Customers utilizing the Forge by Acision SDK will be provided a 10 day notification period prior to any pricing changes going into effect. Customers will be notified via email of any changes in fee or fee structure on either the Forge by Acision SDK or Secure Messaging Services.
All fees are exclusive of applicable federal, state, local and foreign taxes, and all use, sales, value added, commercial or other similar taxes, surcharges or license fees, duties, tariffs, levies, withholdings and similar assessments whether charged to or against Acision, and these amounts will be payable by Customer, excluding taxes based upon Acision’s net income. Customer will not withhold any taxes from any amounts due to Acision and where Customer is required by law to withhold any amount Customer shall gross up the payment so that the amount received by Acision is the same had there been no withholding.
Acision may specify the manner in which Customer will pay any fees, and any such payment shall be subject to Acision’s then-current accounts receivable policies.
If Customer disputes any fees (or any portion thereof) paid or payable by Customer, Customer will notify Acision in writing within 60 days of the date of the activity that generated the dispute (“Dispute Notification Period”), and the parties will attempt to resolve the matter promptly and in good faith. If a determination is made in Customer’s favour, any potential amount issued to resolve the dispute, will be issued as a credit to Customer’s account. In no event will there be any cash refunds. Upon expiration of the Dispute Notification Period, Customer will not be entitled to dispute any fees paid or payable by Customer.
9. NO WARRANTY
ANY USE OF THE FORGE SDK AND FORGE SMS SERVICES OR THE IS AT CUSTOMER’S SOLE RISK AND THE ENTIRE RISK AS TO SATISFACTORY PERFORMANCE, QUALITY, AND ACCURACY IS WITH CUSTOMER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE FORGE SDK AND FORGE SMS SERVICES IS PROVIDED ON A STRICTLY "AS IS" AND “AS AVAILABLE” BASIS, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND XURA DISCLAIMS ALL WARRANTIES OF ANY KIND WITH RESPECT TO THE FORGE SDK AND FORGE SMS SERVICES BY FOR, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
XURA DOES NOT WARRANT THAT THE OPERATION OR PERFORMANCE OF THEACISION SDK SERVICES WILL BE AVAILABLE, UNINTERRUPTED, OR ERROR-FREE; THAT THE FORGE SDK AND FORGE SMS SERVICESTHE WILL MEET CUSTOMER’S (OR ANY END-USER) REQUIREMENTS; OR THOSE DEFECTS IN THE FORGE SDK AND FORGE SMS SERVICES WILL BE CORRECTED. IN ADDITION, XURA MAKES NO WARRANTIES ABOUT THE ACCURACY OR COMPLETENESS OF THE FORGE SDK AND FORGE SMS SERVICES AND ASSUMES NO LIABILITY FOR ANY: PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM CUSTOMER’S (OR ANY END-USER) ACCESS TO OR USE OF THE FORGE SDK AND FORGE SMS SERVICES
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ACISION CREATES ANY WARRANTY. SHOULD THE FORGE SDK AND FORGE SMS SERVICES PROVE DEFECTIVE, CUSTOMER ASSUMES THE ENTIRE COST OF ALL NECESSARY CORRECTION OR REPAIRS.
TO THE EXTENT THIS DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
11. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL XURA BE LIABLE FOR ANY PERSONAL INJURY, PROPERTY DAMAGE, OR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF DATA, OR ANY OTHER COMMERCIAL OR NON-COMMERCIAL DAMAGES OR LOSSES, INCLUDING, BUT NOT LIMITED TO, IN ANY WAY ARISING OUT OF OR RELATED TO THESE TERMS OR ANY USE OR INABILITY TO USE THE FORGE SDK AND FORGE SMS SERVICES, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE), HOWSOEVER CAUSED AND EVEN IF XURA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IF SUCH LIMITATION IS NOT ENFORCEABLE, IN NO EVENT, SHALL XURA BE LIABLE FOR ANY DAMAGES, IN THE AGGREGATE, EXCEEDING ONE THOUSAND US DOLLARS ($1,000) (EVEN IF XURA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE. ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH CLAIM.
FORGE SDK AND FORGE SMS SERVICES ARE NOT INTENDED TO SUPPORT COMMUNICATIONS TO ANY EMERGENCY SERVICESS. IN NO EVENT WILL XURA BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY FOR ANY DAMAGES, LIABILITIES, LOSSES, COSTS OR EXPENSES WHATSOEVER (AND CUSTOMER WILL HOLD XURA HARLMELSS AGAINST ANY AND ALL SUCH CLAIMS) ARISING FROM THE INABILITY TO USE THE FORGE SDK AND FORGE SMS SERVICES TO CONTACT EMERGENCY SERVICES.
Acision reserves the right to investigate and take action against anyone who, in Acision’s sole discretion, violates these Terms, this may include, without limitation, removing offending content from the Forge SDK and Forge SMS Services, suspending or terminating violators’ access and reporting Customer to law enforcement authorities. In addition, Acision may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (i) comply with legal process, applicable laws or government requests; (ii) enforce these Terms; (iii) respond to claims that any content violates the rights of third parties; or (iv) protect the rights, property, or personal safety of Acision, its users and the public.
13. TERM AND TERMINATION/SURVIVAL
Acision’s monthly subscriptions auto-renew. If Customer wants to cancel Customer’s renewal Customer must send an email to firstname.lastname@example.org and request the cancellation of Customer’s subscription at least 72 hours prior to Customer’s monthly renewal date.
Upon suspension of Customer’s use of any Forge SDK and Forge SMS Services, in whole or in part, for any reason: (i) fees will continue to accrue for any Forge SDK and Forge SMS Services that are still in use by Customer; (ii) Customer remains liable for all fees, charges and any other obligations Customer has incurred through the date of suspension; and (iii) all of Customer’s rights with respect to the Forge SDK and Forge SMS Services shall be terminated during the period of the suspension.
Upon any termination of these Terms or Customer’s access to the Forge SDK and Forge SMS Services, for any reason: (i) Customer remain liable for all fees, charges and any other obligations Customer has incurred through the date of termination; (ii) all rights and licenses granted to Customer under these Terms shall terminate, (iii) Customer shall immediately remove the Forge SDK and Forge SMS Services from Customer’s Application and remove all copies of the Forge SDK and Forge SMS Services from all computers, hard drives, networks, and other storage media, (iv) all of Customer’s content on the Forge SDK and Forge SMS Services (if any) may be permanently deleted by Acision.
Notwithstanding anything to the contrary in these Terms, the following provisions shall survive and remain in full force and effect following any termination of the parties' obligations under these Terms: Sections 2, 8, 9, 10, 11, 16, and 18.
14. API KEY AND SECURITY
Customer consents to the collection and processing of Customer’s information in order to provide Customer an application programming interface ("API") key. Customer shall not share Customer’s API key with any other entity. If Customer believes that someone has used Customer’s API key without Customer’s permission, Customer shall immediately contact Acision at email@example.com.
Customer will be reachable during reasonable business hours for security questions or concerns through the contact information that Customer provided upon requesting Customer’s API key.
All networks, computers, software and operating and other systems used to operate Customer’s Application must employ security measures to prevent unauthorized access to or use of any end-user data and the Forge SDK and Forge SMS Services. Customer must promptly report any security deficiencies in or intrusions to firstname.lastname@example.org.
The operation of the Forge SDK and Forge SMS Services, including Customer’s (or Customer’s end-users) content, may be unencrypted and involve (i) changes to meet technical requirements of connecting networks or devices (ii) transmission to Acision’s third party vendors and hosting partners; and (iii) transmission over different networks. Accordingly, Customer has the sole responsibility for adequate protection and backup of this content. Acision has no liability whatsoever for any unauthorized access or use of any content, or any corruption or loss of any content.
The Forge SDK and Forge SMS Services, or any portion, may be suspended for the duration of any unanticipated or unscheduled downtime or for any other reason, including, but not limited to system failures, power outages or other interruptions.
In addition, the Forge SDK and Forge SMS Services, or any portion, may be suspended on the following basis:: (i) for scheduled downtime; (ii) in the event of a denial of service attack or other event that Acision determines, in its sole discretion, may create a risk to the applicable Forge SDK and Forge SMS Services, to Customer or to any other Customers; or (iii) in the event that Acision determines that any Forge SDK and Forge SMS Services is prohibited by applicable law or Acision otherwise determines is necessary for legal, business, or regulatory reasons.
16. EXPORT CONTROLS
Customer shall comply with all export laws and restrictions and regulations including those of the Department for Business, Innovation and Skills (and any other export laws and restrictions and regulations applicable to the United Kingdom and of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control ("OFAC"), or other applicable United States or foreign agency or authority, and Customer shall not (directly or indirectly) sell, divert, export, or allow the export or re-export of the Forge SDK and Forge SMS Services in violation of any such restrictions, laws or regulations.
By downloading or using the Forge SDK and Forge SMS Services, Customer agree to the foregoing and represents and warrant that Customer is not located in, under the control of, or a national or resident of any restricted country and are not a denied party.
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. Acision will promptly process and investigate notices of alleged infringement and will take appropriate actions under the DMCA and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to Acision at email@example.com (subject line: “DMCA” Takedown Request”).
Notice: To be effective, the notification must be in writing and contain the following information:
Identification of the copyrighted work claimed to have been infringed and information reasonably sufficient to permit Acision to locate the material;
Information reasonably sufficient to permit Acision to contact the complaining party, such as an address, telephone number and email address.
A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed
A statement that Customer consents to the exclusive jurisdiction of England and that Customer will accept service of process from the person who provided the notification of infringement or an agent of that person.
If a counter-notice is received, Acision will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Acision’s sole discretion.
Counter-Notice: If Customer believes that the relevant content that was removed (or to which access was disabled) is not infringing, or that Customer has the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use such content, Customer may send a written counter-notice containing the following information to the Copyright Agent:
Customer’s name, address, and telephone number.
A description of the material that was removed and the location where it previously appeared.
A statement under penalty of perjury that Customer has a good faith belief that the material was removed or disabled as a result of mistake or misidentification.
A statement that Customer consent to the exclusive jurisdiction of England, and that Customer will accept service of process from the person who filed the original DMCA notice or an agent of that person.
Customer’s electronic or physical signature.
Repeat Infringer: In accordance with the DMCA, Acision has adopted a policy of terminating, in appropriate circumstances and at Acision's sole discretion, access to the Forge SDK and Forge SMS Services or by users who are deemed to be repeat infringers. Acision may also at its sole discretion limit access to the Forge SDK and Forge SMS Services by users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
Unless the parties have entered into a written amendment to these Terms that is signed by both parties regarding the Forge SDK and Forge SMS Services, these Terms and the AUP constitute the entire agreement between Customer and Acision pertaining to the subject matter hereof, and supersedes any and all written or oral agreements with respect to such subject matter.
Customer agrees that Acision and each of its affiliates and group companies have the benefit of all Customer’s obligations and rights to enforce the Terms herein. The laws of England, excluding its conflicts of law provisions, govern these Terms. The prevailing party in any action arising out of these Terms shall be entitled to an award of its costs and attorneys' fees. Customer agrees any proceedings hereunder by Customer shall be subject to the exclusive jurisdiction of the courts of England however Acision may seek injunctive or similar relief in any court of its choosing.
Any cause of action hereunder must commence within 1 year after the cause of action accrues.
If any provision of these Terms is deemed invalid or unenforceable, the invalid provision shall not affect the validity of the remaining provisions. Acision’s failure to enforce any right or provision of these Terms does not constitute a waiver of such right or provision.
These Terms are personal to the Customer and may not be assigned or transferred for any reason whatsoever (including, without limitation, by operation of law, merger, reorganization, or as a result of an acquisition or change of control involving Customer) without Acision's prior written consent and any action or conduct in violation of the foregoing, Acision reserves the right to terminate the agreement in these instances. Acision expressly reserves the right to assign these Terms and to delegate any of its obligations hereunder.
Any notice required or permitted to be given hereunder in writing will be given to the receiving party by certified mail, return receipt requested or by overnight delivery. Acision may use Customer’s current address as provided by Customer in connection with billing and payment activities. Acision’s current address may be found on its website.