End User Terms and Conditions of Use | Last Revision April 17, 2023
IMPORTANT: READ CAREFULLY
THESE END USER TERMS AND CONDITIONS OF USE (“AGREEMENT”) IS A BINDING CONTRACT BETWEEN ACELYNK AND END USER, MEANING ANY PERSON WHO LOGS ON TO THE “SERVICES” THROUGH A “CUSTOMER ACCOUNT” OR “ASSOCIATED ACCOUNT” (as such terms are defined below).
1. Definitions. As used in this Agreement,
a. “ACELYNK,” “we,” “us” or “our” means ACELYNK, LLC, a Wyoming limited liability company and wholly owned subsidiary of Magaya Corporation, with its principal place of business at 7950 NW 53rd St., Suite 300, Miami, Florida 33166;
b. “Confidential Information,” with respect to ACELYNK, means the methods and designs of the Services, including “look and feel” thereof, any documentation related thereto, communications with you or your “Related Persons” (as defined below), and any other nonpublic Information regarding ACELYNK’s business or the Services; and “Confidential Information” with respect to Customer means “Customer Data” and “Customer Information” (as such terms are defined below).
c. “Customer” means a person or entity who has established a “Customer Account” with ACELYNK by executing an Order Schedule and/or Statement of Work setting forth the fees due to ACELYNK and the number of permitted users (“Associated Accounts”). Customer bears sole responsibility for all use or misuse of the Services whether through its Customer or Associate Accounts.
d. “Customer Information” means all nonpublic “Information” (as defined below) disclosed to or collected by us about (i) your Customer Account, (ii) your Associated Accounts, if any, and (iii) your customers and clients; and “Personally Identifying Information” means any Customer Information that permits the identity of an individual to whom the information applies to be reasonably inferred by either direct or indirect means;
e. “Handle” or “handling,” with respect to Customer Information, “Your Data,” and/or “Usage Data” (as such terms are defined below) refers to accessing, copying, using, processing, storing, retrieving, displaying, importing, exporting, or otherwise handling Customer Information, Your Data and/or Usage Data, as well as modifying the form thereof, but solely to the extent necessary for ACELYNK to provide you with the Services;
f. “Information” means content, contracts, data, documents, files, ideas (whether or not copyrightable or patentable), information-based work tools, knowledge, know-how, memoranda, notes, plans, proposals, records, statements of work, servers, software, systems, trade secrets, and any other physical or intangible information or thing that conveys information, data, facts or a particular arrangement or sequence thereof, and any and all copies or extracts of any of the foregoing;
g. “Intellectual Property Rights” means copyrights, and rights in trademarks, trade dress, service marks, trade names, patents, design rights, mask works, industrial design, trade secrets, know-how, confidential information, and any other intangible property right of an intellectual nature;
h. “Related Persons” means ACELYNK’s or Customer’s shareholders, directors, members, officers, employees, independent contractors, consultants, agents, representatives, investors, and Affiliates, and the shareholders, directors, members, officers, employees, independent contractors, subcontractors, consultants, agents, representatives, and investors of such Affiliates;
i. “Services” means ACELYNK’s website, systems, and software, whether through an authenticated network, a web-based portal, or off-line on your computer(s) or other devices
j. “Your Data” means any Information that End User submit or upload to, or enter or store on, ACELYNK’s systems in connection with such End User’s use of the Services; and “Usage Data” means aggregated information about such End User’s use of the Services.
2. End User’s Account Obligations.
a. All End Users must register their accounts with ACELYNK. Accounts (whether a Customer Account or an Associated Account) may only be used by one individual. No other individual may access the Services using another individual’s Account, even if they do so on behalf of that individual.
b. Customers are fully responsible for any activity that takes place under their Customer Account and all of their Associated Accounts. Associated Account holders are fully responsible for any activity that takes place under their Associated Account. ACELYNK reserves the right to cancel any Customer Account and/or Associated Account that engages in any activity in violation of this Agreement.
c. All End Users must maintain and protect the secrecy of their usernames and passwords; and
d. End Users shall promptly notify ACELYNK of any security breach related to your Account.
3. Additional Obligations While Using the Services. End Users shall not:
a. Use the Services to engage in, facilitate, or further unlawful conduct, including but not limited to using the Services as a destination linked to or from any unsolicited bulk messages or unsolicited commercial messages (so-called “spam”);
b. Overburden or otherwise impair the Services or interfere with anyone's use and enjoyment thereof;
c. Unless expressly authorized by ACELYNK in an Order Schedule or Statement of Work, re-sell, re-distribute, or re-route the Services, or allow any third party to use the Services;
d. Copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, modify, alter, scrape data from, transfer, or sell any information provided by the Services; or
e. Resell or redistribute the Services or any part thereof.
4. Your Data.
a. Handling Your Data. ACELYNK does not control Your Data and does not claim ownership of Your Data. Accordingly, in order for ACELYNK to be able to furnish the Services to End Users, each End User hereby grants ACELYNK the right to handle Your Data in order to provide End User with the Services.
b. Non-Infringement of Data. End User warrants and represents that ACELYNK’s handling of Your Data in providing the Services does not and will not infringe upon or violate any right of any kind or nature belonging to a third party.
c. Non-Compliant Data. ACELYNK reserves the right, exercisable at any time, to remove any of Your Data that violates this Agreement or any policy of ACELYNK.
d. Backup of Data. It is End User’s sole responsibility to use the Services as instructed and to back up Your Data. Upon any cessation, termination, or suspension of Services, however caused, ACELYNK may permanently delete Your Data from its servers.
5. Usage Data.
a. Acelynk may collect Usage Data about End User’s use of the Services.
b. Usage data is collected through background processes that either send Usage Data to Acelynk via the internet or allow Acelynk to access Usage Data. Usage Data may include, but is not limited to, instances when the End User accesses and signs out, or commences or quits use, of the Services; the types of features used by End Users; information on errors; the types and versions of operating systems, browsers, and devices used by End Users to access the Services; and diagnostic data for Acelynk’s support purposes.
c. Usage Data is the sole property of Acelynk and may be handled by Acelynk for any business purpose, including but not limited to diagnosing performance issues, analyzing usage of the platform, and improving the reliability of the Services.
6. Customer Information.
a. Customer shall ensure that ACELYNK has current billing and other information necessary for billing and continuation of the Services.
b. All End Users have the right to access, obtain, update correct, or delete their Personally Identifying Information by contacting ACELYNK via firstname.lastname@example.org.
c. ACELYNK may, as necessary, disclose Customer Information to companies that participate with ACELYNK in furnishing the Services or performing functions on ACELYNK’s behalf, including but not limited to analyzing data, providing customer service, and processing payments;
d. ACELYNK may need to disclose Customer Information where necessary: (i) to comply with any applicable law, regulation, legal process or enforceable governmental request; (ii) to enforce this Agreement, including investigation of potential violations; (iii) to detect, prevent, or otherwise address fraud, security or technical issues; or (iv) to protect against harm to the rights, property or safety of ACELYNK, End Users, or the public.
e. If ACELYNK is sold or transferred to another entity, Customer Information will most likely be part of the sale or transfer in order to provide continuity of the Services.
f. From time to time, ACELYNK may use End Users’ addresses, including your email addresses, to send End User notices or offers about the Services. End Users’ use of the Services constitutes their consent to receive such notices from us.
7. Security; Confidential Information.
a. Security. ACELYNK protects all Customer Information and Your Data using industry-standard best practices like firewalls and Secure Socket Layer communications. Acelynk regularly monitors its systems for potential vulnerabilities and reviews its information collection, storage, and processing practices to ensure they are subject to the most recent physical, technical, and organizational security measures.
b. Disclosure Restrictions. The Party receiving Confidential Information (“Recipient”) from the Party disclosing it (“Discloser”) shall, in perpetuity, (i) keep Confidential Information in confidence at all times; (ii) disclose it only to its Related Persons who have the need to know and who are under confidentiality restrictions at least as restrictive as those contained in this Agreement; and (iii) handle Confidential Information solely to the extent necessary and sufficient to perform its obligations or exercise its rights under this Agreement. The foregoing disclosure restrictions shall not apply to Information that is made public by the Discloser, or that is or becomes known publicly through no fault of the Recipient or its Related Persons; is learned by Recipient from a third party entitled to disclose it; is already known to Recipient before receipt from Discloser; is independently developed by Recipient; or must be disclosed by operation of law.
c. Degree of Care. Recipient shall at all times protect Confidential Information with at least the same degree of care as it normally exercises to protect its own Confidential Information of a similar nature, but no less than a reasonable degree of care.
d. Unauthorized or Inadvertent Disclosure. Recipient shall notify Discloser immediately upon discovery of any unauthorized or inadvertent use or disclosure of Confidential Information and shall use diligent efforts to assist Discloser in remedying same.
e. Equitable Relief. Recipient acknowledges and agrees that monetary damages might not be a sufficient remedy for any breach or threatened breach of this Agreement by Recipient or its Representatives. Therefore, in addition to any remedies available at law, Discloser shall be entitled to specific performance, injunctive, and other equitable relief as remedies for any such breach or threatened breach and, in such event, Recipient hereby waives any requirement for Discloser to post a bond or other surety, or to show actual damages in connection with any such equitable relief.
f. Required Disclosure. In the event Recipient is required to disclose Confidential Information to a third party under any federal, state or local law, regulation, or a valid order issued by a court or governmental agency of competent jurisdiction, Recipient may disclose same on a confidential basis, provided that: (i) Recipient minimizes disclosure to just so much of the Confidential Information as is required; (ii) in the case of disclosure to a court, Recipient notifies Discloser of the underlying proceeding in sufficient time to allow Discloser to obtain an appropriate protective order; and (iii) in any event, the Parties shall each take appropriate steps, including obtaining
protective orders, as may be necessary, to minimize the impact of such disclosure while making efforts to cooperate with each other.
8. Interruptions in Services. ACELYNK will use reasonable commercial efforts to provide 99.9% availability of the Services calculated on a monthly basis. The Services may be interrupted due to:
a. Hardware failure;
b. Connection failure between the server hosting ACELYNK and the closest Internet router;
c. Planned maintenance performed outside ACELYNK’s normal business hours, which are 8:00 am to 5:00 pm, and with at least 24-hours advanced notice;
d. Unscheduled maintenance at any time to address Critical Problems and Major Problems (as defined below).
9. Customer Support. ACELYNK will use reasonable commercial efforts to provide customer support as follows:
a. Critical Problems. "Critical Problems" are those that impede or prevent timely filing of documents that have filing deadlines of 24 hours or fewer. Support for Critical Problems is provided 24 hours per day, 7 days per week. 95% of calls and emails will be responded to within two (2) hours. Example of a Critical Problem: a broker or importer is unable to submit its entry to CBP because of system issues.
b. Major Problems. "Major Problems" are those that impede or prevent filing of documents that have filing deadlines of more than 24 hours. Support for Major Problems is provided during Normal Business Hours. 85% of calls and emails will be responded to within four (4) business hours.
c. Minor Problems. "Minor Problems" include all other issues, problems and inquiries. Support for Minor Problems is provided during Normal Business Hours. 60% calls and emails will be responded to within four (4) business hours.
a. Invoices. Customers will be billed for all services furnished to their Customer Account and its Associated Accounts. Invoices are sent via email in PDF format. ACELYNK does not provide paper invoices. All billing and payment will be in U.S. Dollars in accordance with the applicable order. Checks are accepted from U.S. Customers only, and returned checks are subject to a $35.00 processing fee. PRE-PAID ACCOUNTS ARE NOT REFUNDABLE, IN WHOLE OR IN PART, AND PRORATED REFUNDS ARE NOT GRANTED, REGARDLESS OF THE REASON.
b. Overdue Payments. Any payment not made before the end of the month in which such invoice was rendered (or as otherwise specified on the invoice or applicable order) is considered delinquent. ACELYNK shall have the right to lock any delinquent account and will unlock such account only upon payment of any overdue sum and ACELYNK’s then-current “unlocking” fee.
c. Billing Errors. If Customer believes we have made an error on any invoice, Customer must notify us within thirty (30) days of the invoice date, specifying the exact nature of the error. Following receipt of your notice, we will make the appropriate determination and any necessary adjustment.
11. Modifications and Changes.
a. Modifications. ACELYNK may, at any time in its sole discretion, modify (a) this Agreement by changing, eliminating or adding any term or condition, or (b) the Services, by adding or deleting features or functionality, or making other changes (collectively, “Modification(s)”).
b. Effective Date of Modifications. Modifications take effect immediately upon the date posted on our website (“Effective Date”) at www.acelynk.com/terms-and-conditions-of-use, and apply to (i) all Customer Orders or Statements of Work entered into on or after the Effective Date; and/or (ii) any use of the Services that continues beyond fifteen (15) days following the Effective Date, which use constitutes your acceptance of all Modifications. If Customer and End Users of Associated Accounts cease using the Services during such fifteen-day period, Customer you will have no further payment obligation to ACELYNK other than to pay for all charges incurred up to the date on which Customer’s Customer Account and any Associated Account cease all use.
12. Intellectual Property.
a. Software and Services.
i. As part of or in conjunction with the Services, ACELYNK may furnish for your use by Customer certain applications, customizations, or other software (“Software”) which may be installed on Customer’s systems or devices, or otherwise made available through the Services. Whether custom-created at Customer’s request and expense, or otherwise, all Software, together with any documentation related thereto, and all Intellectual Property Rights therein, are the sole and exclusive property of ACELYNK. Without in any way limiting ACELYNK’s rights as aforesaid, ACELYNK reserves the right to make any customization requested by you available to all ACELYNK End Users.
ii. End User shall not disassemble, decompile, or reverse engineer any Software or request or assist any third party to do so.
iii. Software may be subject to United States export laws and regulations. End users shall not export or re-export the Software or right of access and/or use the Software to any country, person, entity, or end-user subject to U.S. export restrictions.
iv. Except as expressly provided herein, nothing in this Agreement shall be construed to grant or imply any right of any kind or nature to the Software or any of ACELYNK’s trademarks, trade names, logos, software, system, intellectual property, or personal property.
b. Trademarks. “ACELYNK” and other trademarks and services marks indicated on our website or Services, including but not limited to MAGAYA), together with any logo forms thereof (collectively the “Marks”), are the sole and exclusive property of ACELYNK or MAGAYA, as the
case may be, and may be registered in the United States or in other jurisdictions, including internationally. The Marks may not be used in connection with any product or service that is not expressly approved in advance in writing by ACELYNK or MAGAYA (as the case may be). Any trademark or service mark not owned by ACELYNK or MAGAYA that appears on our website or Services is the property of its owner who may or may not be affiliated with, connected to, or sponsored by ACELYNK. No association with any company, entity, product, domain name, e-mail address, logo, person, place or event is intended and none may be inferred.
13. Limited Warranty; Warranty Disclaimers; and Limitations on Liability.
a. ACELYNK PROVIDES THE SERVICES “AS IS” TO END USER.
b. ACELYNK MAKES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, INTEGRITY OF DATA, TITLE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.
c. ACELYNK MAKES NO WARRANTY AS TO THE USE OR THE RESULTS OF USE OF THE SERVICES IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
d. ACELYNK DOES NOT WARRANT, AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS, THAT THE SERVICES WILL MEET ALL OF CUSTOMER’S REQUIREMENTS, OR WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFICIENCIES IN THE SERVICES WILL BE CORRECTED.
e. NO INFORMATION OR ADVICE, WHETHER ORAL OR WRITTEN, GIVEN BY ACELYNK OR ANY OF ITS REPRESENTATIVES SHALL CREATE ANY WARRANTY, EXPRESS OR IMPLIED, OR IN ANY WAY ALTER THE SCOPE OF THE WARRANTY AND WARRANTY DISCLAIMERS PROVIDED IN THIS SECTION 13.
f. IN NO EVENT SHALL ACELYNK OR ITS RELATED PERSONS BE LIABLE TO CUSTOMER, CUSTOMER’S RELATED PERSONS, OR HOLDERS OF ASSOCIATED ACCOUNTS FOR ANY COST OF PROCUREMENT OF SUBSTITUTE OR REPLACEMENT SERVICES OR GOODS; LOSS OR CORRUPTION OF DATA; LOSS OF ANTICIPATED SAVINGS, BUSINESS, BUSINESS INFORMATION, CONTRACTS, GOODWILL, PRODUCTION, PROFITS, OR REVENUES; WASTED OPPORTUNITY OR WASTED MANAGEMENT AND/OR STAFF TIME; BUSINESS INTERRUPTION; ANY INDIRECT, SPECIAL, REMOTE, OR SPECULATIVE DAMAGE; OR ANY OTHER DAMAGE ARISING OUT OF OR RELATED TO THE INSTALLATION, USE, INABILITY TO USE, OR NON-USE OF THE SERVICES (OTHER THAN SUCH DAMAGES CAUSED BY INTENTIONAL WRONGDOING OF ACELYNK OR ITS RELATED PERSONS), EVEN IF ACELYNK OR ITS RELATED PERSONS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
g. EXCEPT AS PROVIDED IN SECTION 14.b BELOW, THE LIABILITY OF ACELYNK AND ITS RELATED PERSONS SHALL BE LIMITED TO DIRECT DAMAGES WHICH, REGARDLESS OF THE LEGAL BASIS FOR THE CLAIM, SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID OR PAYABLE TO ACELYNK FOR THE SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY AT ISSUE. THE EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS SECTION 13 APPLY TO ALL LEGAL THEORIES, CAUSES OF ACTION, AND CLAIMS, INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS AND CLAIMS UNDER ANY STATUTE OR REGULATION THROUGHOUT THE WORLD.
h. CUSTOMER AND HOLDERS OF CUSTOMER’S ASSOCIATED ACCOUNTS ACKNOWLEDGE AND ACCEPT THE REASONABLENESS OF THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS ON LIABILITY SET FORTH IN SECTION 13. SUCH DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS SHALL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF ANY OTHER REMEDY OR WHETHER ANY REMEDY PROVIDED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
a. By Customer. Customer, on behalf of itself and all End User of its Associated Accounts shall and hereby does indemnify, defend, and hold harmless ACELYNK and its Related Persons from and against any and all claims, demands, or proceedings, and any and all losses, costs, damages, and expenses (including reasonable attorney’s fees, court costs and legal expenses) resulting therefrom, which claims, demands, or proceedings, arise out of or relate to: (i) Customer’s or such End Users’ use, inability to use, or non-use of the Services (other than caused by intentional wrongdoing by ACELYNK or its Related Persons); (ii) any failure of ACELYNK to comply with any data-handling laws or regulations other than those established by United States federal or applicable state laws; (iii) any claim or allegation that Customer’s or its End Users’ use of the Services (including but not limited to any customizations thereof) constitute a breach of any agreement between Customer (or its End Users) and any third party; and (iv) ACELYNK’s handling of Your Data in the course of performing its obligations under any Order Schedule or Statement of Work, or in providing you with the Services.
b. By Acelynk. ACELYNK shall and hereby does indemnify, defend, and hold harmless Customer and its Related Persons from and against any and all claims, demands, or proceedings, and any and all losses, costs, damages, and expenses (including reasonable attorney’s fees, court costs and legal expenses) resulting therefrom, which claims, demands, proceedings or lawsuits, arise out of or relate to the infringement or alleged infringement by ACELYNK of any third party’s Intellectual Property Rights. ACELYNK’s obligations under this indemnification are expressly conditioned on the following: (i) Customer shall promptly notify ACELYNK of any such claim; (ii) ACELYNK shall have the right to participate in, and to the extent it so desires, to control, the defense thereof with counsel selected by ACELYNK; provided, however, that Customer shall have the right to retain its own counsel at its own expense, but in no event shall such representation prejudice ACELYNK’s right to control the defense and negotiate a settlement or compromise); (iii) in any event, Customer and its counsel, if any, shall cooperate with ACELYNK to facilitate the defense and settlement of the claim. ACELYNK will not have any liability to Customer to the extent that the claim arises from any unauthorized use of the Services.
15. Non-Solicitation of Employees. As long as Customer maintains a Customer Account (the “Term”), and for a period of twelve (12) months following deletion or termination thereof, neither Customer nor its Related Persons, shall knowingly solicit, directly or through a third party, or hire, any of ACELYNK’s employees or other personnel known to or learned of by Customer or its Related Persons during the Term. The restrictions contained in this Section 15 shall not apply to any of the following employees and circumstances: (a) any employee who has ceased working for ACELYNK for at least six (6) months prior to being solicited; and (b) any employee that responds (without specific solicitation) to a general solicitation through newspapers or other publications of general circulation, placement agencies, or similar means.
16. Dispute Resolution; Arbitration.
a. Governing Law. This Agreement shall be governed by and construed, interpreted, and resolved in accordance with the laws of the State of Florida without regard to its choice of law provisions; provided, however, that any procedural or substantive Claim conflicting with or falling under the exclusive jurisdiction of United States federal law shall be governed by, and construed, interpreted, and resolved in accordance with United States federal law without regard to its choice of law provisions.
b. Mandatory Arbitration. Any dispute or controversy arising out of or related to this Agreement and/or the relationship between the Parties established herein (“Claims”) shall be settled by binding arbitration. Arbitration shall be conducted in Miami, Florida, by a single arbitrator in accordance with the Commercial Arbitration Rules of the American Arbitration Association, which rules are incorporated herein by reference. If possible, the arbitrator shall be experienced in resolving disputes regarding software-as-a-service. The arbitrator shall have the power to award attorney’s fees and costs, as well as to provide permanent equitable and other relief. Except as provided in Section 16.c below, the arbitrator’s award shall be final and binding, and judgment on the award may be entered in any court of competent jurisdiction, wherever situated.
c. Permitted Appeals from Arbitration Awards. Any arbitration award may be appealed solely on the basis of a material mistake of fact or law and only if filed within thirty (30) days following issuance of the arbitration award (a “Permitted Appeal”), but if the Permitted Appeal is unsuccessful, the court may, in its discretion, award the other Party’s reasonable attorneys’ fees, legal costs, and expenses incurred in such appeal. All Permitted Appeals shall be submitted exclusively to the jurisdiction of the Florida state courts in and for Miami-Dade County, Florida, and the federal courts in and for the Southern District of Florida, and the Parties hereby unconditionally and irrevocably consent and submit to such exclusive jurisdiction and venue, and waive any objection they may now or hereafter have (including forum non conveniens) with respect thereto.
d. Equitable Relief. Notwithstanding the mandatory arbitration provisions of this Agreement (and in addition to its rights under Section 7.e above), ACELYNK shall have the right to seek injunctive and other equitable relief to enforce this Agreement in any court of competent jurisdiction, wherever situated. In addition, with respect to such right of ACELYNK, Customer hereby unconditionally and irrevocably consents and submits to the jurisdiction of the Florida state courts in and for Miami-Dade County, Florida, and the federal courts in and for the Southern District of Florida, and waive any objection that Customer may now or hereafter have (including forum non conveniens) with respect thereto. In order to secure equitable relief, ACELYNK shall not be required to secure or post a bond or other surety, or to demonstrate that monetary relief would be insufficient.
e. Waiver of Right to a Jury. In any action or proceeding permitted to be brought in a court of law under this Agreement, Customer and Acelynk hereby waive all rights to trial by jury.
a. Amendments in Writing. No amendment to or modification of this Agreement or any of its terms and conditions shall be valid or binding on the Parties except as provided as provided in section 11 above.
b. Assignment. Customer may not transfer or assign this Agreement or any of its rights or delegate any of its obligations hereunder, whether temporarily or permanently, voluntarily or involuntarily, and whether by merger, consolidation, dissolution, operation of law or any other manner, without the prior written consent of ACELYNK. Any purported assignment or delegation without ACELYNK’s prior written consent shall be deemed null and void ab initio.
c. Binding Effect. The rights and benefits of this Agreement are binding upon and inure to the benefit of Parties' respective successors and permitted assigns.
d. Enforceability/Severability. If any provision of this Agreement shall be held void, voidable, invalid or inoperative, the remaining provisions of this Agreement shall remain in full force and effect. However, if such void, voidable, invalid or inoperative provision is a material term or condition of this Agreement, the Parties shall supply a substitute provision, negotiated in good faith, which comes closest to their original intent.
e. Entire Agreement. This Agreement, together with all current Order Schedules and Statements of Work, constitutes the entire agreement between the Parties with respect to the Services and subject matter of this Agreement, and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect thereto, including but not limited to all prior versions of these ACELYNK Terms and Conditions of Use.
f. Rights of Third Parties. This Agreement shall not be deemed to give any right or remedy to any third party whatsoever.
g. Survival. All provisions of this Agreement that contemplate the performance of any obligation following termination of your Customer Account or cessation of the Service (including but not limited to Sections 7, and 12 through 16 above), together with all provisions that relate to the enforcement of the Parties’ respective rights and remedies, and this Section 17, shall survive such termination or cessation.
h. Waiver. No waiver of any right or remedy shall be effective unless in writing and signed by an authorized representative of the Party against whom enforcement of the waiver is sought. Neither the failure of either Party to exercise any right, nor the waiver of any default or breach by the other Party, shall constitute a waiver of such right or a waiver of such default or breach with respect to any subsequent default or breach.