IMPORTANT - PLEASE READ CAREFULLY:
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE REGISTERING FOR THE SERVICE. YOU MAY REGISTER AND SUBSCRIBE TO THE SERVICE UNDER A LEGAL COMPANY NAME. BY CHECKING THE "I AGREE" BOX ON THE REGISTRATION FORM, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY AGREEING TO THIS AGREEMENT, YOU REPRESENT THAT YOU ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOUR BUSINESS OR CORPORATION AND BIND THE BUSINESS OR CORPORATION TO THE TERMS IN THIS AGREEMENT. IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, DO NOT CHECK THE "I AGREE" BUTTON, AND YOU WILL NOT BE ABLE TO PROCEED ON TO THE NEXT PAGE OF THE REGISTRATION PROCESS AND WILL NOT BE PROVIDED WITH ACCESS TO THIS SERVICE.
1. DESCRIPTION OF THE SERVICE
Once you become a registered member (each a "Member"), you may use the technology available through the Service to build your e-business presence (each a "Member Site"). In this way, each Member will be a part of the OnlineAgency network of e-business sites (collectively, the "OnlineAgency Network"). Specifically, the Service allows you to: (a) enter content, including, without limitation, data, text, graphics, images, video and icons, related to your e-business ("Content"); (b) manage, organize, design, modify and customize your Content via our browser-based application, (c) designate some or all of your Content as "Private Content", which means it can be accessed and used only by your registered and unregistered customers or end users ("Customers"), or designate some or all of your Content as "Network Content", which means it can be accessed and used by any Member in the OnlineAgency Network and its Customers ("Content" refers to both Private and Network Content); (d) utilize certain marketing and promotional features, including sending promotional emails to your Customers; (e) permit your Customers to communicate one-way with you via email; (f) use our Guest Book feature as described in this Agreement. We may offer other tools and services that are not part of the standard Service. The Service does not provide you with hosting services ("Hosting Services") unless you specifically register and pay for such Hosting Services. If you do register for the Hosting Services, the terms specifically set forth in Section
7 (Hosting Services), as well as the other terms in this Agreement, will govern the provision of the Hosting Services. YOU AGREE AND ACKNOWLEDGE THAT IN PROVIDING THE SERVICE, ONLINEAGENCY IS NOT, AND IS NOT ACTING AS, A TRAVEL AGENT, AND THAT ONLINEAGENCY IS NOT A REGISTERED SELLER OF TRAVEL INFORMATION OR PACKAGES.
We may modify any of the terms and conditions of this Agreement, at any time and from time to time, in our sole discretion. You will receive e-mail notification of any modification and a change notice will be posted on http://affiliates.onlineagency.com/public/terms.htm. You are responsible for regularly reviewing the agreement. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY OPTION IS TO END YOUR USE OF THE SERVICE (AND, IF APPLICABLE, THE HOSTING SERVICES). YOUR CONTINUED USE OF THE SERVICE OR HOSTING SERVICES FOLLOWING THE POSTING OF THE CHANGE NOTICE OR NEW AGREEMENT ON THE ONLINEAGENCY SITE WILL INDICATE YOUR ACCEPTANCE OF THE CHANGES. You may not modify, alter, or vary the terms of the Agreement without our written approval.
3. ACCOUNT AND PASSWORD
3.1 MEMBER ACCOUNT AND PASSWORD
You must be at least 18 years old to use the Service or Hosting Services. To open an account and access the Service, you must complete the registration process by providing us with current, complete, and accurate information, including financial information, about yourself and your e-business as prompted by the registration form on the OnlineAgency Site ("Registration Data"). We may reject your registration form for any reason, including, but not limited to, a determination by us, in our sole discretion, that your Member Site is unsuitable for the OnlineAgency Network. If we approve your registration form, you will choose a user name and a password. You are entirely responsible for maintaining the confidentiality of your password and account, and for all acts that occur under your account. You agree to notify us immediately of any unauthorized use of your account, any breach of security, or loss or theft of user name and password(s). At the time you register for an account on the OnlineAgency Site, you may designate your email subscription preferences when prompted to do so, telling us if you want to receive any future communications from us or our business partners regarding our products or services or other promotions. We reserve the right to communicate with you regardless of your email subscriptions in the event that important messages need to be communicated to you and other Members, including, but not limited to, service outages and material changes or modifications to the Service.
3.2 CUSTOMER ACCOUNTS AND PASSWORDS
We will use commercially reasonable efforts to make your Content accessible to Customers on the World Wide Web, whether Customers have registered for an account with you or are merely browsing your Member Site. You are responsible for determining eligibility for Customer access to the Content and determining the period of time during which a Customer can access the Content through the Service. If a Customer becomes a registered user, you are also responsible for (a) establishing, administering, maintaining, and registering all Customer accounts; (b) providing us, if applicable, with the Customer Data (as defined below) that we require to enable registered Customers to access the Content; and (c) assigning each registered Customer a unique user name and password to access the Content. You will be entirely responsible for maintaining the confidentiality of and updating the user names and passwords of your registered Customers. You agree to notify us immediately if a Customer password is lost, stolen, disclosed to an unauthorized third party, or compromised in any way. You are entirely responsible for all acts that occur in connection with Customer accounts, including misuse of the Service and Content and any fees incurred under your or your Customer account. Customer passwords are subject to cancellation or suspension by us for breach of any of the terms of this Agreement or for misuse of any password by you or any Customer, and the re-issuance or reactivation of passwords so canceled may be subject to our then-current standard fees. You agree to use your best efforts to ensure that each Customer prevents any third party from obtaining his or her password.
We agree to maintain the security of the Registration Data through the use of passwords. Moreover, we will maintain the security of your credit card and similar billing information through the use of the secure server software (SSL) to encrypt data.
4. LICENSE GRANTS.
4.2 You hereby grant us a non-exclusive, worldwide, royalty-free, transferable right to (a) reproduce, publicly display, publicly perform, distribute, sub-license, modify, and create derivative works of your Private Content solely in connection with providing the Service to you; and (b) sell, license, sub-license, lease, transfer, reproduce, publicly display, publicly perform, modify, create derivative works of, and distribute in the aggregate form any information relating to your Customers ("Customer Data") and their transactions in connection with the Service or your Member Site, including, without limitation, performance characterization data, usage information, pattern of use information, travel preferences, and demographic information (collectively, "Transaction Data"). Upon your request, we may provide you with Transaction Data relating to your Customers.
4.3 By designating certain Content as Network Content, you hereby grant us the right to reproduce, publicly display, publicly perform, distribute, modify, sub-license (through multiple tiers), and create derivative works of your Network Content in connection with the Service. In turn, subject to the terms and conditions of this Agreement, you will have the right to reproduce, publicly display, publicly perform, distribute, modify, sublicense, and create derivative works of any other Member's Network Content in connection with the Service and make it accessible to your Customers.
4.4 You hereby grant OnlineAgency, during the term of this Agreement, a non-exclusive, worldwide, royalty-free right to use, reproduce, publish, perform, and display your trademarks, service marks, trade dress, trade names, corporate names, logos or other identifiers ("Trademarks"): (a) on and in connection with the development, use, reproduction, modification, adaptation, publication, display, and performance of the Service; and (b) in promotional and marketing materials, content directories and indexes, electronic and printed advertising, publicity, press releases, newsletters, and mailings about OnlineAgency, the Service, the OnlineAgency Network, or your Member Site. All goodwill arising out of our use of any of your Trademarks will inure solely to your benefit.
5.1 COMPLIANCE WITH THE LAWS
You represent and warrant that this Agreement, delivery of your Private or Network Content, or any portion hereunder pursuant to this Agreement will not cause us to be in violation of any law of any jurisdiction or third party agreement, and we may at any time modify our grant of rights to the extent necessary to ensure compliance with such law and agreements.
5.2 PROHIBITED CONDUCT
You agree that you will not, and you will ensure that your Customers will not: (a) use the Service, the Software, the Content, the Member Network or your Member Site for any purpose not authorized or contemplated under this Agreement; (b) lend, sell, lease, rent, sublicense, assign, or otherwise transfer any Network Content of another Member in the OnlineAgency Network or any portion of the Service; (c) remove, obscure, or alter any notice of intellectual property rights present on or in the Content, including, but not limited to, any patent, copyright, rights in Trademarks, trade secret rights, moral rights, and other intellectual property or proprietary rights arising under the laws of any jurisdiction ("Intellectual Property Rights"); (d) misuse any Trademarks appearing in the Content; (e) use the Network Content or any portion of the Service to support third party commercial users; (f) gain, or allow any third party to gain, unauthorized access to any portion of the Service or the Content or OnlineAgency's server; (g) interfere with or disrupt the Service or servers or networks connected to the Service; (h) use the Service to interfere with or disrupt the use and enjoyment of other Members or their Customers or other third parties, including, but not limited to, distributing unsolicited advertising, chain letters, pyramid schemes or spam, or propagating computer worms, viruses, time bombs, or any other harmful computer code or files; (i) violate any laws, requirements, or policies applicable to the Service; (j) gain unauthorized access to other computer systems or machines accessible via the Internet, or data and information belonging to others or whose application is also hosted, created, and deployed by us; or (k) otherwise use your Member Site for illegal, improper or inappropriate purposes.
5.3 YOUR ACKNOWLEDGEMENT
You acknowledge and, agree, and will ensure that your Customers acknowledge and agree, that: (a) the Content may contain errors, omissions, inaccuracies, or outdated information; (b) we make no representations or warranties as to the completeness, accuracy, adequacy, truthfulness, currency, or reliability of any Content, and we are not liable to you or any third party for the lack of any of the foregoing; and (c) we do not endorse or support the Content. You agree that the Network Content of other Members and the materials on the OnlineAgency Site, including the selection and arrangement of such items, are the copyrighted works of OnlineAgency or its licensors. You further agree to notify us promptly in writing if you or any of your Customers believes any of the Content or any materials related to the Service infringes a third party's copyright or other proprietary right. You agree that you are solely responsible for confirming the accuracy, completeness, and currency of the Content and determining whether you can act on such Content. In no event will we be liable in any way for any Content provided by you or any other Members or other suppliers of Network Content, including, without limitation, for any loss or damage of any kind incurred as a result of the use of any of the Content.
5.4 RESTRICTIONS ON YOUR CONTENT
You agree that you will not include, upload, reproduce, distribute, post, or transmit any Content or material that: (a) is in violation of any applicable local, state, national, or international law or regulation, including, without limitation, material that is in violation of copyright laws, trademark laws, or rights of publicity or privacy; (b) is unlawful, harmful, threatening, abusive, harassing, defamatory, libelous, tortuous, obscene, vulgar, pornographic, hateful, or racially or ethnically objectionable; (c) encourages conduct that could constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national, or international law or regulation; or (d) expresses or implies in any way that any opinions or products in the Content are endorsed by OnlineAgency. It is entirely your responsibility to follow all applicable copyright and other laws that pertain to your Member Site and the Content. You must have express permission to use any person's copyrighted material, whether it be a writing, an image, or any other copyrightable material in violation of the law.
5.5 REMOVAL OF CONTENT
We do not have any obligation to monitor any of the Content. However, without limiting our discretion under the terms of this Agreement, we may immediately remove any Content that, in our sole opinion, violates the terms of this Agreement or is the subject of a complaint by any or several of our Members or Customers.
6. YOUR RIGHTS AND RESPONSIBILITIES
6.1 CONTENT INPUT, ACCESS, AND CAPACITY
Subject to the terms of this Agreement, we will provide you password-protected access to the Service and use commercially reasonable efforts to allow you, at any time, to input, modify, and update your Content (with the exception of sound or audio) that you desire to include on your Member Site or to offer to your Customers, provided that you have obtained all the necessary rights and authorization from third parties to display and use such Content, including, but not limited to, any Trademarks contained in such Content. You will be initially limited to a total of 20,000 pages of data transfer per month ("Data Transfer Limit") for Content we serve through the Service to you and your Customers. We reserve the right to charge $20.00 per month for every 20,000-page increment in excess of the Data Transfer Limit. It is your responsibility to pay any additional fee(s) assessed by us if you and your Customers collectively exceed the monthly Data Transfer Limit. We reserve the right to allocate and re-allocate resources and virtual space in our server and database as we deem appropriate.
6.2 GUEST BOOK; QUOTE FORM
At your option, you may use our Customer registration template contained in our Guest Book feature, which will provide you a "Guest Profile" template on which your Customers may enter their Customer Data and store your Customer Data for you, subject to the terms in Sections 3.2 (Customer Accounts and Passwords) above. We will provide an electronic form for Customers to complete online when they want a price estimate on a particular travel plan or package ("Quote Form"). Upon a Customer's completion of the Quote Form, we will use commercially reasonable efforts to send such Quote Form to a single email address specifically designated by you for that purpose. It is your sole responsibility to ensure that we receive only one current email address to which to send the Quote Forms and that you notify us of any changes to such email address. You agree that in providing the Service to you, OnlineAgency (a) is not, and is not acting as, a travel agent, and (b) is not liable in any way for the Quote Form, including, without limitation, for the failure to send the Quote Form or timely send it to you. In no event will we be responsible for booking any travel plans or packages for Customers, or fulfilling or processing any Quote Forms from Customers. We do not warrant the completeness, accuracy, appropriateness, or timeliness of the Quote Form or the information contained therein. You agree that you are solely responsible for confirming the information on the Quote Form or any information related to it.
6.3 CUSTOMER PRIVACY
6.4 REQUIREMENT FOR CUSTOMERS
In making the Service available for access by Customers, you must do so by written or electronic agreement which incorporates, at a minimum, the following terms: (a) OnlineAgency will be an express third party beneficiary of each such agreement, and (b) Sections 5 (Restrictions), 3.2 (Customer Accounts and Passwords), and 11.2 (Disclaimer of Actions Caused by and/or Under the Control of Third Parties). In addition, such written agreement must (i) specify, in conspicuous font, that third party suppliers disclaim all implied warranties and specifically disclaim the implied warranties of non-infringement, merchantability, and fitness for a particular purpose; (ii) state in comparable words, "The Service Provider and its third party providers and suppliers do not warrant that the service will be uninterrupted, error-free or completely secure, or that defects in the service will be corrected. You further agree that the third party service providers and suppliers are not liable for any claim arising out of or due to the delivery, receipt, response to, or fulfillment of your request for a quote. You also agree that the Service Provider and its third party service providers and suppliers have not represented or warranted that: (a) the service or content provided herein will meet your requirements or expectations; (b) the content provided herein is accurate, reliable, timely, or error-free; or (c) the technology or software that makes the service available is free from errors, defects, design flaws or omissions;" (iii) limit liabilities to a reasonable amount, and (iv) state, in comparable words, in conspicuous font, "The collective liabilities of the Service Provider and its third party service providers and suppliers are subject to the limitation of liabilities described in this agreement. Service Provider and third party service providers and suppliers disclaim all liability under any theory of liability, whether in an action based on a contract, tort (including negligence), or any other legal theory, however arising, for any indirect, special, incidental, punitive or consequential damages of any kind, including, but not limited to, damages for loss of profits, use data, business interruption, goodwill or other intangible, even if Service Provider and the third party service providers and suppliers have been advised of such damages. Service Provider and the third party suppliers are intended beneficiaries of these limitations and disclaimers, and the limitation of liabilities for Service Provider and its third party service providers and suppliers are not cumulative."
6.5 THIRD PARTY LINKS
Your Member Site may contain links to Web sites operated by parties other than OnlineAgency. You acknowledge that we do not control such Web sites and are not responsible or liable for their contents. You represent and warrant that you will not indicate, expressly or implicitly, that we endorse the material on such Web sites or are associated with their operators.
7. HOSTING SERVICES
If you register for the Hosting Services, you must agree to the terms and conditions in this Section 7, in addition to the other terms in this Agreement.
Under the Hosting Services (and upon payment of the applicable fees), we will use commercially reasonable efforts to provide your Member Site (at OnlineAgency's facilities or at the facilities of OnlineAgency's Internet service provider) with access to the Internet, except during scheduled maintenance periods and subject to the terms of this Agreement. You will have the ability to create and maintain accounts for Customers to enable Customers to access the Content. You will be able to directly assign, and will be solely responsible for directly assigning, a user name and password to each Customer. In no event will we be responsible for providing your Customers with user names and passwords to access the Content.
In addition to the provisions of Section 11.2 (Disclaimer of Actions Caused by and/or Under the Control of Third Parties), we will not be responsible for: (a) errors in or interruption of the Service due to (i) failure of computer hardware, equipment, or software not provided by us, or (ii) accident, neglect, misuse, failure of electric power, adverse environmental conditions, catastrophe, improper use, your negligence, or that of your Customers; (b) any errors in the Content; (c) on-site technical support; or (d) impairment or disruption of your, or a Customer's connections to the Internet (or portions thereof) due to actions or in-actions of third parties who provide or control Internet services.
7.3 DOMAIN NAME SELECTION
We agree to host your Member Site under the single domain name you select and register, provided that the domain name you request is available and is not already registered by another individual or entity. We will provide you access to domain name registration applications and the names of several domain name registration services, as well as a means to search for available domain names. This domain name search tool is provided to you only as a convenience, and we are not responsible for the accuracy, completeness, or reliability of such search for available domain names. You will be responsible for registration and maintenance fees for all domain name registrations that become due and payable during the term of this Agreement. If you already have a registered domain name, we will use commercially reasonable efforts to transfer your registered domain name to our web server.
8. TECHNICAL SUPPORT
During the term of this Agreement, we will make technical support and assistance applicable to the Service available Monday through Friday (except for federal holidays), 9:00 a.m. to 5:00 p.m. U.S. Central Standard Time. Such support and assistance will be provided only to you and will consist of technical assistance via telephone or email from an OnlineAgency technician for Customer questions that you are not able to resolve. Customers will not be entitled to contact us directly for technical support unless expressly authorized by us. Except as otherwise agreed to by OnlineAgency in writing, you will not receive any training from us during the term of this Agreement. In the event we agree in writing to provide training, we shall also specify the fee for such training.
9. PROPRIETARY RIGHTS
9.1 OUR PROPRIETARY RIGHTS
All rights, title, and interest in and to the Content provided by OnlineAgency or other Members in the OnlineAgency Network, the OnlineAgency Site, the technology and Software enabling the Service, and OnlineAgency's Intellectual Property Rights are and will remain with OnlineAgency or its licensors. Except as provided for in this Agreement, no rights or implied licenses in the Content provided by OnlineAgency or other Members in the OnlineAgency Network, the OnlineAgency Site, the technology and Software enabling the Service, or OnlineAgency's Intellectual Property Rights are granted to you by this Agreement.
9.2 YOUR PROPRIETARY RIGHTS
Subject to the licenses granted in Section 4 (License Grants by You), all rights, title, and interest in and to your Member Site, your Private Content, the Network Content provided by you to other Members in the OnlineAgency Network, your Trademarks, your Customer Data and your Intellectual Property Rights are and shall remain with you or your licensors. Except as provided for in this Agreement, no rights or implied licenses in such intellectual property are granted to OnlineAgency by this Agreement.
10. FEES AND PAYMENT
Your fees for the Service and/or Hosting Services are set forth in the current OnlineAgency Price List, which is available from OnlineAgency upon request. Your annual fee will be reflected in an invoice sent to you for the Service and/or Hosting Services. Renewals are on an annual basis. We reserve the right to charge $20.00 per month for every 20,000 pages increment over the Data Transfer Limit. Additional fees may apply to you if you have more than one domain name, request training or additional technical support, want any customization, or sign up for other OnlineAgency services that are not part of the standard offering. We may change any such fees at any time upon five (5) days written notice to you. All amounts due hereunder are net amounts, and you will pay all applicable sales, use, or services taxes of any kind based on the fees payable under this Agreement (except taxes related to our income). Upon your failure to timely pay the fees and taxes, we may, in our sole discretion, suspend the Service and terminate this Agreement upon three (3) business days written notice. You will be responsible for all reasonable expenses (including attorneys' fees) incurred by us in collecting such fees and taxes from you. All fees incurred by you as of the date of termination will be immediately due and payable to us upon termination of the Agreement. All amounts payable under this Agreement are denominated in United States dollars.
11. NO WARRANTY; DISCLAIMER OF WARRANTIES
11.1 NO WARRANTY
The Content, Service, Hosting Services and Quote Form are provided on an "As Is" and "As Available" basis, and your use of the Service and Hosting Services is at your own risk. WE DO NOT MAKE, AND HEREBY DISCLAIM, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON INFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WE MAKE NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING THE SERVICE, HOSTING SERVICES, OR THE PERFORMANCE, AVAILABILITY OR FUNCTIONALITY THEREOF. WE DO NOT WARRANT THAT THE SERVICE OR HOSTING SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE, OR THAT DEFECTS IN THE SERVICE OR HOSTING SERVICES WILL BE CORRECTED. YOU FURTHER AGREE THAT WE ARE NOT LIABLE FOR ANY CLAIM ARISING OUT OF OR DUE TO YOUR CONTENT OR ANY OTHER MATERIALS ON YOUR SITE, OR TO THE DELIVERY, RECEIPT, RESPONSE TO, OR FULFILLMENT OF THE QUOTE FORM. YOU ALSO AGREE THAT WE HAVE NOT REPRESENTED OR WARRANTED THAT: (A) THE SERVICE, HOSTING SERVICES, OR CONTENT WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS OR THE EXPECTATIONS OF YOUR CUSTOMERS; (B) THE CONTENT IS ACCURATE, RELIABLE, TIMELY, OR ERROR FREE; OR (C) THE TECHNOLOGY OR SOFTWARE THAT MAKES THE SERVICE OR HOSTING SERVICES AVAILABLE IS FREE FROM ERRORS, DEFECTS, DESIGN FLAWS, OR OMISSIONS. YOU ARE SOLELY RESPONSIBLE FOR EVERYTHING CONTAINED ON YOUR MEMBER SITE.
11.2 DISCLAIMER OF ACTIONS CAUSED BY AND/OR UNDER THE CONTROL OF THIRD PARTIES. OnlineAgency hereby disclaims any responsibility for actions caused by and/or under the control of third parties. Moreover, we do not and cannot control the substance or flow of Network Content or data to or from OnlineAgency's network and other portions of the Internet. Such matters depend in large part on the performance of third parties. Therefore, we disclaim any and all liability resulting from or related to such matters or events.
11.3 You acknowledge that as a part of OnlineAgency's internal system administration, we may back up our server computers, but you agree that, unless otherwise agreed to in writing by us, we do not provide or guarantee any storage or back-up for the software or Content contained on your Member Site. You are solely responsible for the storage or back-up of your Content or Customer Data.
12. YOUR WARRANTIES
You represent and warrant that: (a) you, if you are a company, are duly organized, validly existing and in good standing, and are qualified and/or licensed to do business in all jurisdictions to the extent necessary to carry out your obligations under this Agreement; (b) you, or if you are a company the person entering into this Agreement on your behalf, are an adult of at least 18 years of age; (c) this Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid and binding obligation, enforceable against you in accordance with its terms; (d) you, on your behalf and on behalf of your business or corporation, have the full right, power and authority to enter into and be bound (and bind your business or corporation to) by the terms and conditions of this Agreement and to perform your obligations under this Agreement, without the approval or consent of any other party; (e) have all the necessary rights and authorization to grant the rights granted to us in this Agreement (including, but not limited to, rights in the Content and any Trademarks therein); (f) the Content and other materials provided by you under this Agreement do not infringe a third party's proprietary right; (g) you will not violate or breach Sections 5 (Restrictions), 6.3 (Customer Privacy), or 6.4 (Requirements for Users); and (h) you will not make any representations or warranties to Customers about the Service, Hosting Services, Content, or OnlineAgency Site, other than those expressly authorized by OnlineAgency in writing.
13. INDEMNITY BY YOU
You, at your expense, will defend, indemnify, and hold OnlineAgency, its affiliates, directors, officers, employees, contractors, representatives, and agents harmless from and against any and all third party claims, suits, demands, proceedings, losses, or expenses (including, without limitation, court costs, experts' fees and attorney's fees) due to or arising out of (a) Content provided by you or any other content or materials on your Member Site; (b) any hyperlinks posted or displayed on your Member Site or any materials or information related to such hyperlinks; (c) use or misuse of the Service, Hosting Services or Content by you, or your Customers; (d) your infringement or misappropriation of any intellectual property or other right of any person or entity, including, without limitation, infringement by the Content or use of your selected domain name for your Member Site; (e) any violation or breach of this Agreement; (f) any intentional or grossly negligent act by you; or (g) any unauthorized commitment, representation, or warranty made by you to Customers with respect to the Service, Hosting Services, Content, OnlineAgency Site, or OnlineAgency in general.
14. LIMITATION OF LIABILITY
IN NO EVENT WILL WE BE LIABLE, UNDER ANY THEORY OF LIABILITY, WHETHER IN AN ACTION BASED ON A CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, HOWEVER ARISING, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, USE, DATA, BUSINESS INTERRUPTION, GOODWILL, OR OTHER INTANGIBLE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, WE SHALL HAVE NO LIABILITY FOR MATTERS CAUSED BY THIRD PARTIES OR MATTERS OTHERWISE OUTSIDE OF OUR DIRECT CONTROL. IN NO EVENT WILL OUR AGGREGATE LIABILITY ARISING OUT OF ANY KIND OF LEGAL CLAIM (WHETHER IN CONTRACT, TORT, OR OTHERWISE) IN ANY WAY CONNECTED TO THIS AGREEMENT, THE SERVICE, HOSTING SERVICES, OR CONTENT EXCEED THE AMOUNTS PAID BY YOU TO ONLINEAGENCY FOR SUCH SERVICE (OR IF APPLICABLE, THE HOSTING SERVICES) DURING THE TWELVE (12) MONTHS PRECEDING THE IMPOSITION OF SUCH LIABILITY.
15. TERM AND TERMINATION
This Agreement commences upon the Effective Date and will continue until terminated in accordance with Section 10 (Fees and Payment) or this Section 15.1. Either party may terminate this Agreement for any reason upon thirty (30) days written notice to the other party. This Agreement will automatically terminate upon the filing of any petition under the Bankruptcy Code by or against either party, upon any assignment for the benefit of either party's creditors, or upon either party's dissolution. Notwithstanding to the contrary, we may, at any time and for any reason without notice to you, discontinue or suspend any or all aspects of the Service, cancel your password, or restrict your use or your Customers' use of the Service or Content in whole or in part, including, but not limited, for scheduled maintenance or any breach of this Agreement by you or your Customers.
15.2 EFFECT OF TERMINATION; SURVIVAL OF TERMS
Upon the expiration or termination of this Agreement, we will immediately cease providing the Service and Hosting Services. However, we will provide you with thirty (30) days from the effective date of termination to remove any Content owned by you. You will discard all electronic and hard copies of the Network Content provided by other Members, except that you may retain a reasonable number of hard copies of such Network Content for your internal record keeping. Any and all of your payment obligations under this Agreement for the Service or Hosting Services provided through the date of termination will immediately become due. The provisions of Sections 5 (Restrictions), 6.3 (Customer Privacy), 6.4 (Requirements for Users), 6.5 (Third Party Links), 9 (Proprietary Rights), 11 (No Warranty; Disclaimer of Warranties), 12 (Your Warranties), 13 (Indemnity by You), 14 (Limitation of Liability), 15.2 (Effect of Termination; Survival of Terms), and 16 (General Provisions) will survive the termination of this Agreement for any reason. All other rights and obligations of the parties will cease upon termination of this Agreement.
16. GENERAL PROVISIONS
You may not assign or sublicense, by operation of law or otherwise, this Agreement or any duties, rights or obligations hereunder without the prior written consent of OnlineAgency. We may assign this Agreement or the rights, duties or obligations hereunder without notice to you. This Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
16.2 GOVERNING LAW; FORUM SELECTION
This Agreement will be governed by and construed under the laws of the State of Texas without reference to conflict of law principles. The parties agree to submit to the personal and exclusive jurisdiction of the courts located within Travis County, Texas, and the Austin Division of the United States District Court for the Western District of Texas. No action by you arising under this Agreement may be brought at any time more than twelve (12) months after the facts upon which the cause of action is based occurred.
16.3 NO AGENCY OR THIRD PARTY BENEFICIARY
You and OnlineAgency are independent contractors under this Agreement, and nothing in this Agreement will be construed to create a partnership, joint venture, franchise, or agency relationship between you and OnlineAgency. Neither party has any authority to enter into agreements of any kind on behalf of the other party. You and OnlineAgency agree that there should be no third party beneficiary to this Agreement, including but not limited to your Customers.
16.4 NO WAIVER; SEVER ABILITY
The failure of either party to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, then such provision will be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect.
Any notice under this Agreement will be in writing and will be considered given five (5) days after being mailed by prepaid registered mail, return receipt requested, or upon acknowledgement of receipt of facsimile transmission, or immediately upon delivery by recognized courier service, to the parties at the addresses specified herein or at such other address as a party may specify by notice to the other. In addition, we may provide any notices required under this Agreement by posting a notice on your account or by electronic mail at the last email address we have on file for you.
16.6 FORCE MAJEURE
Except for your payment of fees, neither party will be deemed to be in default of or to have breached any provision of this Agreement as a result of any delay, failure in performance, or interruption of service, resulting directly or indirectly from acts of God, acts of civil or military authorities, civil disturbances, wars, strikes or other labor disputes, fires, transportation contingencies, interruptions in telecommunications, Internet services, or network provider services, failure of equipment and/or software, other catastrophes, or any other occurrences which are beyond such party's reasonable control.
This Agreement may be amended by OnlineAgency from time to time. Any increase in annual fee to be paid by you under this Agreement shall be effective upon your next annual renewal. Other amendments shall be binding on you 30 days after being posted on OnlineAgency's website.
16.8 ENTIRE AGREEMENT; MISCELLANEOUS
The section headings in this Agreement are for convenience only and have no legal or contractual effect. You acknowledge that you have independently evaluated this Agreement and are not relying on any representation, guarantee, or statement from us or anyone else, other than as expressly set forth in this Agreement. This Agreement constitutes the complete agreement and entire understanding between the parties relating to the subject matter herein. This Agreement merges and supersedes all prior or contemporaneous agreements or understandings, oral or written.
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