THESE TERMS AND CONDITIONS (“TERMS AND CONDITIONS”) SHALL CONSTITUTE THE ENTIRE AGREEMENT BY AND BETWEEN AKMINER, LLC, AN OHIO LIMITED LIABILITY COMPANY, AND/OR ITS SUBSIDIARIES, AFFILIATES, OR ASSIGNS (“AKminer”), AND ANY PERSON, ENTITY, USER, AND/OR USER (EACH, A “USER”) INDIRECTLY OR DIRECTLY ACCESSING www.akminer.com, ITS CONTENTS, AND ANY RELATED WEBSITE(S) AND/OR APPLICATION(S) (COLLECTIVELY, THE “SITE”), AND/OR PURCHASING ANY GOOD OR SERVICE ON OR THROUGH THIS SITE. THESE TERMS AND CONDITIONS TAKE ABSOLUTE PRECEDENCE AND PREVALENCE OVER ANY TERMS AND CONDITIONS OF THE USER. ACCESSING THE SITE AND/OR ANY PURCHASE BY THE USER OF ANY SERVICES AND/OR GOODS SHALL CONSTITUTE ACKNOWLEDGEMENT AND ASSENT BY THE USER TO THESE TERMS AND CONDITIONS. THE USER ACKNOWLEDGES AND AGREES THAT THE USER HAS READ AND UNDERSTANDS THESE TERMS AND CONDITIONS AND AGREES TO BE BOUND BY THESE TERMS AND CONDITIONS. IN THE EVENT OF ANY INCONSISTENCIES BETWEEN ANY UNDERSTANDINGS OR REPRESENTIATIONS, ORAL OR WRITTEN, AND/OR ANY PRIOR OR CONTEMPORANEOUS AGREEMENTS, INCLUDING, WITHOUT LIMITATION, ANY PURCHASE AGREEMENT, INVOICE, CREDIT APPLICATION, PURCHASE ORDER, AGREEMENT, AND/OR ANY DOCUMENT(S) ANCILLARY TO THE FOREGOING, AND THESE TERMS AND CONDITIONS, THESE TERMS AND CONDITIONS SHALL CONTROL. AKMINER AND THE USER EXPRESSLY AGREE THAT AKMINER MAY MODIFY THESE TERMS AND CONDITIONS FROM TIME TO TIME, AND SUCH MODIFICATIONS SHALL BE BINDING UPON THE USER AS OF THE DATE OF SUCH MODIFICATIONS. THESE TERMS AND CONDITIONS EXCLUSIVELY GOVERN THE ACCESS AND/OR USE OF THE SITE BY USER AND/OR THE SALE OR LICENSING BY AKMINER OF ANY AND ALL GOODS (“GOODS”) AND SERVICES (“SERVICES”) TO USER HEREUNDER, ON OR THOUGH THE SITE (EACH A “TRANSACTION”), AND REPRESENTS THE ENTIRE AGREEMENT BETWEEN USER AND AKMINER WITH RESPECT THERETO. NO ADDITION OR MODIFICATION TO THESE TERMS AND CONDITIONS WILL BE BINDING ON AKMINER UNLESS AGREED TO IN WRITING SIGNED BY THE CHIEF EXECUTIVE OFFICER OF AKMINER. AKMINER EXPRESSLY OBJECTS TO AND REJECTS OTHER TERMS AND CONDITIONS THAT MAY BE PROPOSED BY USER IN ANY FORM THAT ARE IN ADDITION TO OR OTHERWISE NOT CONSISTENT WITH THE TERMS AND CONDITIONS SET FORTH OR REFERENCED HEREIN.
- User Acknowledgements. By accessing the Site, the User acknowledges and agrees to the following:
- ANY AND ALL TRANSACTIONS ARE FINAL.
- PAYMENTS ARE NONREFUNDABLE AND THERE ARE NO REFUNDS OR CREDITS.
- USER IS FULLY LIABLE FOR ALL CHARGES RELATED TO THE PURCHASE OF GOODS AND/OR SERVICES.
- USER ACKNOWLEDGES THAT AKMINER IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON.
- USER ACKNOWLEDGES THAT AKMINER EXPRESSLY DISCLAIMS THE PROFITABILITY OF ANY GOODS AND/OR SERVICES.
- USER ACKNOWLEDGES THAT USER IS AWARE OF AND EXPRESSLY ACCEPTS THE LEVEL OF NOISE PRODUCED AND/OR ELECTRICITY AND/OR HEAT USED BY ANY GOOD PURCHASED HEREUNDER.
- ANY AND ALL DELIVERY DATES FOR GOODS ARE APPROXIMATE.
- The Site. The Site is the exclusive property of AKminer Technologies Co., Ltd. The Site is protected, without limitation, pursuant to U.S. and foreign intellectual property laws, including, without limitation, copyright and trademark laws. AKminer Technologies hereby grants the User a limited, non-sublicensable right to access and make use of the Site. The foregoing right is hereby granted to the User only to the extent such User’s indirect or direct use of the Site does not violate these Terms and Conditions. Upon such violation, the foregoing right of access and use shall terminate immediately and without the need for any action on the part of AKminer Technologies . The User shall not modify copy, reverse engineer, decompile, create derivative works, distribute, republish, commercially exploit, or upload any of the Site and/or the material on the Site without prior, written consent from AKminer Technologies . No intellectual property or other rights in and to this Site — other than the limited right to use set forth above — are transferred to the User. AKminer Technologies expressly reserves the right, at any time, to change or discontinue any content or feature of the Site or any Services or Goods made available through the Site without notice; charge fees in connection with the use of the Site; modify and/or waive any fees charged in connection with the Site; and/or offer opportunities to some or all Users. The User expressly agrees that AKminer Technologies shall not be liable for any such modification, suspension or discontinuance of the Site or of any Service, content, feature or Goods offered through the Site.
- SITE WARRANTY DISCLAIMERS; LIMITATION OF LIABILITY. AKMINER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SITE OR ITS CONTENTS, WHICH ARE PROVIDED ON AN “AS-IS, WHERE-IS BASIS.” AKMINER DISCLAIMS ANY AND ALL REPRESENTATIONS AND/OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SITE AND ANY WEBSITE WITH WHICH IT IS LINKED. AKMINER FURTHER DISCLAIMS ANY AND ALL REPRESENTATIONS AND/OR WARRANTIES THAT THE SITE WILL MEET A USER’S REQUIREMENTS; THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; AND/OR ANY ERRORS IN ANY DATA OR SOFTWARE WILL BE CORRECTED. AKMINER IS NOT RESPONSIBLE FOR ANY PROBLEMS OR TECHNICAL MALFUNCTION OF ANY TELEPHONE NETWORK OR LINES, COMPUTER ONLINE SYSTEMS, SERVERS, PROVIDERS, COMPUTER EQUIPMENT, SOFTWARE, FAILURE OF COMMUNICATION ON ACCOUNT OF TECHNICAL PROBLEMS, OR TRAFFIC CONGESTION ON THE INTERNET OR AT ANY WEBSITE OR COMBINATION THEREOF, INCLUDING INJURY OR DAMAGE TO USERS OR TO ANY OTHER PERSON’S PROPERTY RELATED TO OR RESULTING FROM PARTICIPATING OR DOWNLOADING MATERIALS IN CONNECTION WITH THE WEB OR IN CONNECTION WITH THE SITE. AKMINER ALSO EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND/OR WARRANTIES AS TO WHETHER ANY INFORMATION ACCESSIBLE VIA THE SITE IS ACCURATE, COMPLETE, OR CURRENT. IT IS THE USER’S RESPONSIBILITY TO EVALUATE THE ACCURACY AND COMPLETENESS OF ALL INFORMATION, OPINIONS, AND OTHER MATERIAL ON THE SITE. TO THE FULLEST EXTENT PERMITTED BY ALL APPLICABLE LAWS, AKMINER AND ITS AFFILIATES, SUBSIDIARIES, MANAGERS, MEMBERS, EMPLOYEES, AGENTS, SUPPLIERS, AND CONTRACTORS SHALL IN NO EVENT BE LIABLE FOR ANY CLAIMS, CHARGES, DEMANDS, DAMAGES, LIABILITIES, LOSSES, AND EXPENSES OF WHATEVER NATURE AND HOWSOEVER ARISING, INCLUDING, WITHOUT LIMITATION, ANY COMPENSATORY, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, LOSS OF USE, LOSS OF DATA, LOSS CAUSED BY A COMPUTER OR ELECTRONIC VIRUS, LOSS OF INCOME OR PROFIT, LOSS OF OR DAMAGE TO PROPERTY, CLAIMS OF THIRD PARTIES, OR OTHER LOSSES OF ANY KIND OR CHARACTER, EVEN IF AKMINER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SITE OR ANY WEBSITE WITH WHICH IT IS LINKED. THE USER EXPRESSLY ASSUMES TOTAL RESPONSIBILITY FOR ESTABLISHING SUCH PROCEDURES FOR DATA BACK UP AND VIRUS-CHECKING AS THE USER DEEMS NECESSARY.
- Site Postings. To the extent that portions of the Site (such as “reviews,” “chat rooms,” or “bulletin boards”) provide Users an opportunity to post and exchange information, ideas, and opinions (“Postings”), USER ACKNOWLEDGES AND IS AWARE THAT AKMINER HAS NO OBLIGATION TO SCREEN, EDIT, OR REVIEW POSTINGS PRIOR TO THEIR APPEARANCE ON THE SITE, and Postings do not necessarily reflect AKminer’s views. To the fullest extent permitted by applicable laws, AKminer shall in no event have any responsibility or liability for the Postings or for any claims, damages, or losses resulting from their use and/or appearance on the Site. AKminer reserves the right to monitor all Postings and to remove any which AKminer considers, in its sole discretion, to be offensive or otherwise not compliant with these Terms and Conditions. The User hereby represents and warrants, upon adding a Posting to the Site, that he/she/it has all necessary rights in and to all such Postings provided by such User and all material they contain; that such User’s Postings shall not infringe any proprietary or other rights of third parties; that such User’s Postings shall not contain any viruses or other contaminating or destructive devices or features; that such User’s Postings shall not contain any defamatory, indecent, offensive, tortious, or otherwise unlawful material or content; and that such User’s Postings shall not be used to carry out or solicit any unlawful activity and/or be used to make commercial solicitations. The User hereby authorizes AKminer and grants AKminer an unlimited, worldwide, perpetual, non-exclusive, assignable, sublicensable, and royalty-free license to use and/or authorize others to use all or part of such User’s Postings in any manner, format, or medium that AKminer or such other parties see fit. The User shall have no claim or other recourse against AKminer for infringement of any proprietary right in any of the User’s Postings and expressly waives any and all rights related thereto.
- User Identity. A User may not create or use an account on the Site for anyone other than such User. A User shall not let others use a User’s account and the User may not share such User’s login information with others. A User shall keep such User’s contact and profile information accurate and current. A User may never use another User’s account without their written permission. A User is solely responsible for the activity that occurs on such User’s account. A User shall notify AKminer immediately in writing of any breach of security or unauthorized use of a User’s account. AKminer shall not be liable for any losses or damages caused by any unauthorized use of a User’s account. By providing AKminer with an email address the User consents to AKminer using the email address to send the User Site-related notices, including any notices required by law, in lieu of communication by postal mail. If a User does not want to receive promotional email messages, such User may opt out by unsubscribing from such email communications from AKminer. The User hereby warrants that: all information that such User provides to AKminer is true and accurate; the User will not use the Site in violation of any international, Federal, State or local law, rule, ordinance or governmental regulation; and, User will only access the Site on computers and mobile devices for which the User is the authorized owner or has authority to access.
- Digital Millennium Copyright Act Compliance. If a User has any copyright concerns about any materials posted on the Site by others, please let AKminer know. AKminer complies with the provisions of the Digital Millennium Copyright Act applicable to internet service providers (17 U.S.C. § 512). Please provide AKminer with written notice (“Notice”) by contacting AKminer ’s Designated Agent at the following address:
AKminer Technologies Co., Ltd.
#1607,LiJingShangwu Bldg,NanWan Street,LongGang Dist,Shenzhen,Guangdong,China Postal Code:518116
Email: [email protected]
Phone: +86 755 2890 7362
To be effective, the Notice must include the following:
- A physical or electronic signature of the owner, or a person authorized to act on behalf of the owner, (“Complaining Party”) of an exclusive right that is allegedly being infringed upon;
- Information reasonably sufficient to permit AKminer to contact the Complaining Party, such as an address, telephone number, and if available, an electronic mail address;
- Identification of the allegedly infringing material on the Site (“Infringing Material”), and information reasonably sufficient to permit AKminer to locate such material on the Site;
- Identification of the copyrighted work claimed to have been infringed upon (“Infringed Material”), or, if multiple copyrighted works at a single site are covered by a single Notice, a list of each copyrighted work claimed to have been infringed (User shall be specific as to which Infringing Material is infringing on which Infringed Material);
- A statement that the Complaining Party has a good faith belief that use of Infringing Material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the Notice is accurate, and under penalty of perjury, that the Complaining Party is the owner or is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Minors. The Site is intended for persons having the legal capacity to be bound by these Terms and Conditions. By using the Site, the User represents and warrants that (i) such User is at least 18 years of age; and, (ii) that such User have the right, authority, and capacity to accept these Terms and Conditions and abide by all of the provisions set forth herein. Children younger than 18 years of age may not use the Site under any circumstances.
- Purchase of Services and/or Goods. A User may order Services and/or Goods pursuant to these Terms and Conditions by accessing the Site and specifying the specific Services and/or Goods being ordered, the quantity, and delivery address. For such orders, AKminer may use email confirmation, separate purchase orders or other applicable documentation that may be negotiated between a User and AKminer, however, any and all such transactions shall be governed by these Terms and Conditions. All orders are subject to acceptance by AKminer’s authorized representative, and the order shall be effective only when payment is made in full to AKminer and accepted by AKminer in writing (which may be communicated immediately via the Site and/or by email). No order can be validly accepted orally. AKminer shall provide User with the Services and/or Goods for the prices set forth on the Site as of the date and time such order is accepted by AKminer.
- Payment. Upon selection of the Goods and/or Services, the entire purchase price applicable to such Goods and/or Services shall be paid by the User to AKminer in full prior to order and shipment of such Goods and/or provision of such Services. By entering into a Transaction, User expressly authorizes AKminer to charge User for such order, and any other charges User may incur in connection with the foregoing Transaction to the payment method User provided during registration (or to a different payment method if User changes User’s account information). Prices and charges are subject to change without notice. PAYMENTS ARE NONREFUNDABLE AND THERE ARE NO REFUNDS OR CREDITS. USER IS FULLY LIABLE FOR ALL CHARGES RELATED TO THE PURCHASE OF GOODS AND/OR SERVICES, INCLUDING ANY UNAUTHORIZED CHARGES. USER ACKNOWLEDGES THAT AKMINER IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON.
- Shipping, Taxes and Other Charges. In addition to the amounts payable for Goods and/or Services, User shall be solely liable and responsible for any and all shipping costs and applicable sales and use taxes, customs, duties, and tariffs on and/or associated with the Goods and/or Services imposed on AKminer at any time upon the sale and/or shipment and/or provision of the Goods and/or Services, now imposed by international, federal, state, municipal and/or any other governmental authorities or becoming effective for or during the duration of the transactions contemplated herein. AKminer, in its sole discretion, shall ship all products (to the extent applicable) via AKminer’s preferred carrier. All Goods shall be shipped FOB Point of Shipment. Title and risk of loss pass to User upon delivery to a carrier. User agrees that the delivery dates are estimates only and may be changed. AKminer will use commercially reasonable efforts to cause Goods to be shipped and/or Services provided in accordance with the delivery dates. However, AKminer shall not be liable for failure to ship the Goods or provide the Services as estimated.
- Order Modification; Cancellation. User shall not modify, terminate, cancel or otherwise alter orders, or defer shipment, after acceptance of the order from AKminer without the prior written consent of the AKminer, which may be denied, withheld, or conditioned in AKminer’s sole discretion. User’s wrongful rejection of Services and/or Goods shall entitle AKminer to recover, in addition to any incidental damages caused by User’s wrongful rejection, cancellation or repudiation, damages equal to the profit (including reasonable overhead) which AKminer would have realized had User fully performed, plus AKminer’s costs and expenses incurred prior to receipt by AKminer of notice of cancellation by User. Any written acceptance of modification, termination, and/or cancellation of an order by AKminer shall be subject to conditions which shall indemnify AKminer against liability and expense incurred and commitments made by AKminer and which shall provide for a fifteen percent (15%) cancellation fee, profit on work in process and contract value of Services completed and/or products or Goods completed and ready for shipment. In the event User fails to timely make payment to AKminer of any amounts due and owing to AKminer (including any applicable surcharge, tax, or freight charge), AKminer shall have the right to terminate any User order or any unfulfilled portion thereof. AKminer shall have the right to employ an attorney to collect the balance due, and User agrees to pay all collection costs incurred by AKminer, including its reasonable attorney’s fees.
- Delay. AKminer will not be liable and expressly disclaims and any all liability for any delay in performance and/or delivery of Services and/or Goods, or for any damages suffered by User by reason of delay. Delay in delivery shall not constitute nor justify User’s cancellation of the Agreement nor shall it effect or alter any other portion or section of these Terms and Conditions. Acceptance of Services and/or Goods upon delivery shall constitute a wavier by User of any claim for damages on account of non-shipment or delays in delivery or performance. In the event delay is caused by User’s failure to furnish necessary information to AKminer, AKminermay extend the date of shipment for a reasonable time in proportion to the period of User’s delay.
- Inspections. User shall inspect any Goods and/or Services within TWENTY-FOUR (24) HOURS after delivery such Goods to their shipping destination and/or upon completion of the Services. User shall notify AKminer in writing within such twenty-four (24) hour period of any material defects. The following ARE NOT considered material defects, which list is not exclusive: (i) any cosmetic defects; (ii) the level of noise produced by any Goods; (iii) the amount of heat produced by any Goods; (iv) the amount of or the cost of the electricity consumed by any Goods; and/or (v) the profitability of the Goods and/or Services. If the defective Goods are covered under warranty by the manufacturer of such Goods, then User shall, at User’s sole cost and expense, follow such manufacturer’s return/replacement policy with respect to any such defective Goods. User acknowledges and agrees that, in the event User seeks any type of refund, replacement, and/or the like, User shall seek such refund, replacement, and/or the like directly from the manufacturer of the Goods. AKminer shall not be under any obligation to replace/return any defective Goods or deal with the manufacturer of such Goods with respect to any such defective Goods. User’s failure to notify AKminer within such twenty-four (24) hour period of any alleged nonconformity of the Goods, or any commingling of such Goods shall constitute an acknowledgement by User that the Goods delivered conform and shall constitute an immediate and irrevocable acceptance of such Goods by User and any claim by User with respect to the foregoing is automatically and irrevocably waived. In the event User refuses to receive Goods delivered hereunder, AKminer may exercise any or all of the remedies afforded to AKminer by Ohio Revised Code Chapter 1302 et seq. AKminer shall have no obligation to hold or resell such Goods for User’s account.
- Security. To secure payment and performance obligations hereunder, User hereby expressly grants AKminer a continuing security interest in any and all current and future Goods of the User in possession of AKminer and in all other property of User, now or hereinafter in AKminer’s possession, while any amount due from User to AKminer remains unpaid and while any obligation of User hereunder remains outstanding. User irrevocably authorizes AKminer to file with appropriate governmental authorities any and all UCC financing statements as required by applicable law.
- SERVICES AND GOODS WARRANTY DISCLAIMERS; LIMITATION OF LIABILITY. AKMINER EXPRESSLY DISCLAIMS ALL AND MAKES NO WARRANTIES WITH RESPECT TO ANY GOODS AND/OR SERVICES PROVIDED HEREUNER, WHETHER EXPRESSED, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED OR OTHER WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND/OR NON-INFRINGEMENT. ANY GOODS PURCHASED AND/OR SERVICES PROVIDED BY AKMINER ON BEHALF OF AND/OR TO USER IS PURCHASED AND/OR PROVIDED ON AN “AS IS” BASIS AND AKMINER MAKES NO WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO SUCH GOODS AND/OR SERVICES. AKMINER HAS NO AND EXPRESSLY DISCLAIMS ANY DUTY TO VERIFY MANUFACTURER AND/OR THIRD-PARTY INFORMATION AND USER HEREBY ACKNOWLEDGES AND AGREES THAT ANY RELIANCE BY USER ON MANUFACTURER AND/OR THIRD-PARTY INFORMATION SHALL BE AT USER’S SOLE RISK AND LIABILITY. AKMINER SHALL NOT BE LIABLE TO USER OR ANY OTHER PERSON/ENTITY, DIRECTLY OR INDIRECTLY, FOR ANY CLAIMS, DEMANDS, SUITS, COSTS, EXPENSES (INCLUDING ATTORNEYS’ FEES), LOSSES, JUDGMENTS, DAMAGES, LIABILITIES OR OBLIGATIONS, OF ANY KIND OR NATURE, ARISING IN ANY MANNER FROM OR IN CONNECTION WITH ANY TRANSACTION AND/OR THE GOODS AND/OR SERVICES. AKMINER SHALL NOT BE LIABLE FOR AND DISCLAIMS ANY AND ALL LOST PROFITS AND ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, WHETHER ARISING OUT OF ANY TRANSACTION, THE GOODS AND/OR SERVICES, OR THE PERFORMANCE BY AKMINER UNDER THESE TERMS AND CONDITIONS. IN THE EVENT OF TERMINATION OR CANCELLATION OF A TRANSACTION BY AKMINER FOR ANY REASON, AKMINER SHALL NOT BE LIABLE TO USER FOR COMPENSATION, INDEMNIFICATION, REIMBURSEMENT OR DAMAGES ON ACCOUNT OF ANY LOSS OF PROSPECTIVE PROFITS OR ANTICIPATED SALES OR ON ACCOUNT OF EXPENDITURES, INVESTMENTS, LEASES OR COMMITMENTS MADE IN CONNECTION WITH A TRANSACTION OR THE ANTICIPATION OF EXTENDED PERFORMANCE THEREUNDER. IN NO EVENT SHALL AKMINER HAVE ANY LIABILITY FOR DELAYS IN SHIPMENTS, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, REGARDLESS OF WHETHER SUCH CLAIM IS BROUGHT IN TORT, BREACH OF CONTRACT, BREACH OF WARRANTY OR OTHER THEORY OF LAW OR EQUITY.
- Intellectual Property. User shall have no rights with respect to any of AKminer’s existing or subsequently-acquired or developed Intellectual Property, as defined below, rights or trade secrets or confidential information of AKminer, and User hereby acknowledges that it shall not acquire any rights in respect thereof and that all such trade secrets and confidential information are and shall remain vested in or controlled by AKminer. “Intellectual Property” for purposes of these Terms and Conditions means (i) patents, patent applications, provisional applications, patent disclosures, including all ideas, inventions and improvements disclosed therein, and all reissues, continuations, continuations in part, divisions and reexaminations thereof; (ii) trademarks, service marks, trade names, trade dress, logos, slogans, domain names, including all goodwill appurtenant thereto, and all registrations and applications for registrations thereof and all renewals and extensions thereof; (iii) copyrights and mask works and all registrations and applications for registration thereof; (iv) computer software, software applications and platforms, websites, disks, disk drives, data, data bases and user documentation and audio visuals, domain names, and text materials; (v) all trade secrets, research and development materials, processes, procedures, know how, ideas discoveries, inventions, customer lists, supplier lists, formulas, drawings and designs, technical data, marketing, financial and business plans; (vi) advertising materials currently or in the future utilized by the AKminer; and (vii) copies and tangible embodiments thereof (in whatever form or medium), and related documentation and goodwill. User acknowledges and agrees that AKminer owns the exclusive right, title and interest and into all of AKminer’s Intellectual Property. User shall not at any time do or permit to be done any act or thing which impairs or may impair the rights of AKminer with respect to AKminer’s Intellectual Property. User will never represent that it has any ownership in any of AKminer’s Intellectual Property. User expressly agrees that all of the use and good will of the Intellectual Property shall accrue to the sole benefit of AKminer.
- Indemnification. User shall indemnify, defend and hold harmless AKminerand its affiliates, members, investors, managers, officers, employees, representatives, and their successors in interest and assigns (collectively, the “Indemnified Parties”) from and against any and all losses, damages, or expenses of whatever form or nature, including reasonable attorney’s fees and other costs of legal defense, whether direct or indirect, that they, or any of them, may sustain or incur as a result of (i) any act or omission of the User; (ii) a breach by User of any representation, warranty, and/or obligation with any Indemnified Party; (iii) failure by User to pay any and all applicable taxes, customs, duties, tariffs, and the like arising from the Transactions set forth in these Terms and Conditions; (iv) any and all corrupt data, viruses, malware, or security breaches directly or indirectly introduced by the User; (v) a violation by User (and/or any of its officers, managers, members, investors, shareholders, directors, employees or agents, to the extent applicable) of any applicable law, regulation, or order of the United States or any other applicable government or quasi-governmental authority; (vi) use of the Site by User (and/or any of its officers, managers, members, investors, shareholders, directors, employees or agents, to the extent applicable); and/or (vii) any ownership or operation of the Goods and/or Services by User (and/or any of its officers, managers, members, investors, shareholders, directors, employees or agents, to the extent applicable). The indemnification obligations under this Section shall continue indefinitely.
- No Restrictions against AKMiner. User hereby acknowledges and agrees that AKminer may sell any inventory, Services, Goods, equipment, machinery, or other products, whether covered under these Terms and Conditions or not, to any party pursuant to any terms and conditions agreed to by AKminer and nothing in these Terms and Conditions shall restrict AKminer from the same.
- Independent Contractor. The parties agree that for all intents and purposes, AKminer is an independent contractor and nothing set forth herein shall be construed as creating any partnership, joint venture, agency or employment relationship whatsoever between User and AKminer.
- Termination; Suspension. AKminer, in its sole discretion and upon written notice to the User, may immediately terminate any Transaction or suspend its performance until such time as AKminer has received full payment for any Services and/or Goods already delivered or in process and is satisfied (in AKminer’s sole discretion) as to User’s credit for future deliveries of Services and/or Goods and its performance hereunder. If AKminer suspends performance and later continues its performance, AKminer shall be entitled to such extension of time for performance as is necessitated by the suspension. Termination or suspension of performance by AKminer shall not relieve User of its obligations to make payments on a timely basis. Payments, whether full or partial, received from or for the account of User, regardless of writings, legends, or notation upon such payments, or regardless of other writings, statements, or documents, shall be applied by AKminer against any amount owing by User with full reservation of all AKminer’s rights, without an accord and satisfaction of User’s liability. Unpaid balances will be subject to a finance charge of two percent (2%) per month (24% annually) until all unpaid balances are paid in full.
- Consequences of Termination or Suspension. Termination or suspension of a Transaction by AKminer in accordance with the foregoing provisions will not affect (i) the rights and obligations of the parties with respect to amounts due and owed by User to AKminer prior to the effective date of the termination, (ii) the rights and obligations of the parties with respect to intellectual property rights, indemnification, confidentiality, and governing law of the parties as set forth herein, or (iii) terminate liabilities arising out of conduct of User prior to the actual date of termination. Otherwise, all rights and obligations of the parties to a specific Transaction shall cease to exist upon termination of such Transaction. In the event any amount due from User to AKminer remains unpaid upon termination of a Transaction, User irrevocably authorizes AKminer to sell any and all Goods of the User in possession of or manufactured by AKminer and in all other property of User in AKminer’s possession anywhere in the world, by any and all methods, manners and media, including, without limitation, by digital marketing and internet sales. User acknowledges and agrees that AKminer and/or AKminer’s affiliates or representatives may sell such Goods and property of the User in accordance with terms and conditions as AKminer determines from time to time in its sole discretion, including, without limitation, purchase price, payment terms, and/or shipping terms. AKminer is irrevocably authorized to bill, invoice and collect all sales proceeds from the sale of such Goods and property of the User by AKminer, its affiliates and representatives. Upon satisfying any and all amounts due and owed to AKminer by User, including costs and expenses incurred in selling such Goods and property and collecting upon such sales, AKminer shall pay the excess proceeds, if any, to User.
- Termination Not Exclusive Remedy. Any remedy provided to AKminer shall not be construed to be an exclusive remedy and shall not deprive AKminer of its ability to pursue other available remedies. The parties agree that AKminer’s damages in the event of termination would be difficult or impossible to ascertain and, therefore, any early cancellation or termination charges invoiced to User by AKminer are intended to serve as liquidated damages rather than penalties.
- Force Majeure. AKminer shall not be liable for any loss, damage, delays, changes in shipment schedules or failure to deliver caused by any event beyond its control, including, without limitation, acts or omissions of any manufacturer, accident, fire, actual or threatened strike or riot, explosion, mechanical breakdown (including technological or information systems), plant shutdown, unavailability of or interference with necessary transportation, any raw material or power shortage, compliance with any law, regulation or order, acts of God or public enemy, prior orders from others, or limitations on AKminer’s or a manufacturer’s products or marketing activities or any other cause or contingency beyond AKminer’s direct control. The time for performance shall be extended for a period equivalent to the delay. If, by reason of any of the foregoing events, AKminer’s supply of the Goods shall be insufficient to meet all requirements, including its own, AKminer shall have the right, at its option, and without liability, to allocate its available supply of Goods among its present and future Users in such a manner as AKminer deems equitable.
- Assignment. The rights under these Terms and Conditions are not assignable nor are the duties delegable by User without the written consent of AKminer first having been obtained, and any attempted assignment or delegation without such consent will be null and void. Nothing contained in these Terms and Conditions is intended to convey upon any person or entity, other than the parties and their successors in interest and permitted assigns, any rights or remedies under or by reason of these Terms and Conditions unless expressly stated. All covenants, agreements, representations and warranties of the parties contained in these Terms and Conditions are binding on and will inure to the benefit of User and AKminer, respectively, and their respective successors and permitted assigns.
- Captions and Section Headings. Captions and section headings are for convenience only, are not a part of these Terms and Conditions and may not be used in construing them.
- Waiver of Terms and Conditions. The failure of AKminer in any one or more instances to insist upon performance of any of the terms and conditions contained herein, or to exercise any right or privilege hereunder, shall not be construed as a waiver of any AKminer’s rights or privileges hereunder.
- Governing Law; Venue. These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Ohio, including its provisions of the Uniform Commercial Code, without regard to choice or conflicts of law principles. These Terms and Conditions shall be deemed to have been entered into at Cleveland, Ohio, U.S.A., regardless of the place or places of business of the User.
- Exclusive Jurisdiction. THE USER HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF ANY OHIO STATE COURT OR FEDERAL COURT SITTING IN CUYAHOGA COUNTY, OHIO, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE SITE AND THESE TERMS AND CONDITIONS. THE USER AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. Notwithstanding the foregoing, in the event User’s primary place of business is located within the People’s Republic of China (each, a “Chinese Customer”), all disputes, controversies, or differences which may arise between AKminer and a Chinese Customer, out of or in relation to or in connection with these Terms and Conditions or for the breach of the foregoing, shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one (1) arbitrator appointed in accordance with the said Rules. The language of the arbitration shall be English. The situs for such arbitration shall be Hong Kong, China. The arbitrator shall apply the laws of the State of Ohio, USA to the merits of the dispute. The award rendered by the arbitrator shall be final and binding upon both AKminer and Chinese Customer and may be enforced in any court of competent jurisdiction. The parties hereby exclude the application of the United Nations Convention on Contracts for the International Sale of Goods.
- International Transactions. All payments, including for any international transactions, will be made in U.S. dollars unless otherwise agreed to by AKminer, and User will be responsible for any currency conversion charges. User will, at User’s expense, obtain all export and import licenses, permits and clearances required by applicable laws, regulations, ordinances, and the like in respect of the Products.
- Limitation on Time to File Claims. ANY CAUSE OF ACTION OR CLAIM USER MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS AND CONDITIONS OR THE SITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
- Export Regulations. User acknowledges that certain Goods sold by AKminer hereunder and any documentation and other technology of AKminer may be subject to application export control and sanction laws, regulations, and orders. User certifies, represents, and warrants that it is in compliance and shall take all necessary acts to remain in compliance with all applicable export and re-export control laws and regulations, including, without limitation, the Export Administration Regulations maintained by the U.S. Department of Commerce, trade and economic sanctions and regulations maintained by OFAC (defined below), and the International Traffic in Arms Regulations maintained by the U.S. Department of State. User hereby agrees to defend, indemnify and hold AKminer harmless from and against any and all claims, damages, losses, risks, liabilities and expenses (including attorney’s fees and costs) arising from or related to any breach of the foregoing certification.
- FCPA; Anti-Bribery. In carrying out its responsibilities hereunder and in any Transaction, User shall comply with all applicable anti-bribery laws including, but not limited to, the U.S. Foreign Corrupt Practices Act, as revised (“FCPA”), and the Organization for Economic Cooperation and Development Anti-Bribery Convention, as implemented in the territory. User understands that the FCPA generally prohibits the promise, payment or giving of anything of value either directly or indirectly to any government official for the purpose of obtaining or retaining business or any improper advantage. For purposes of this section, “government official” means any official, officer, representative, or employee of any non-U.S. government department, agency or instrumentality (including any government-owned or controlled commercial enterprise), or any official of a public international organization or political party or candidate for political office. User represents and warrants that, in the performance of these Terms and Conditions and in connection with any Transaction, (i) neither it nor any of its representatives are governmental employees or officials or candidates for political office and User will advise AKminer of any change in such representation; (ii) User and its representatives have not and will not make, offer, or agree to offer anything of value to any government official, political party, or candidate for office; (iii) User will comply with all provisions of the FCPA and the regulations thereunder as amended from time to time; and (iv) User agrees to indemnify, defend, and hold AKminer harmless for damages and expenses resulting from a violation of the foregoing by User or its representatives.
- OFAC. Pursuant to United States Presidential Executive Order 13224 (“Executive Order”), User may be required to ensure that it does not transact business with persons or entities determined to have committed, or to pose a risk of committing or supporting, terrorist acts and those identified on the list of Specially Designated Nationals and Blocked Persons (“List”) generated by the Office of Foreign Assets Control (“OFAC”) of the U.S. Department of the Treasury. The names or aliases of these persons or entities (“Blocked Persons”) are updated from time to time. User certifies, represents and warrants to AKminer that: (a) it is not acting, directly or indirectly, for or on behalf of any person, group, entity or nation named by any Executive Order of the United States Treasury Department as a terrorist, “Specially Designated National and Blocked Person” or any other banned or blocked person, entity, nation or transaction pursuant to any Law that is enforced or administered by the Office of Foreign Assets Control; and (b) it is not engaged in this transaction, directly or indirectly on behalf of, or instigating or facilitating this transaction, directly or indirectly on behalf of, any such person, group, entity or nation. User hereby agrees to defend, indemnify and hold AKminer harmless from and against any and all claims, damages, losses, risks, liabilities and expenses (including attorney’s fees and costs) arising from or related to any breach of the foregoing certification.