This Hosting Agreement ("Agreement") governs your purchase and use of all Web site hosting services, as described in the Order Form, that you order and Ancient Wisdom Productions, Inc.. ("AWP") accepts. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS AS WELL AS ALL POLICIES AND GUIDELINES INCORPORATED BY REFERENCE. AWP may modify any of the terms and conditions contained in this Agreement and any policy or guideline incorporated by reference, at any time in its sole discretion and may also determine whether and when the modifications apply to existing or future customers. Any modifications are effective upon posting of the revisions on the AWP Web site (the "Site"). AWP will post a notice of modifications to this Agreement on the Site for 30 days. AWP may post modifications to referenced policies and guidelines without notice to you. Your continued use of the Services following AWP's posting of any modifications constitutes your acceptance of the modifications.
1.1 Term. This Agreement will be for an "Initial Term" of 365 days. This Agreement will be automatically renewed (the "Renewal Term") at the end of the Initial Term for the same period as the Initial Term, unless you provide AWP with notice of termination either: (a) at least 7 days before the end of the Initial Term or the Renewal Term, whichever is then applicable, or (b) at least 30 days before the end of the Initial Term or Renewal Term, whichever is then applicable. Any notice of termination will be effective upon AWP's receipt of notice.
1.2 Termination Policy. If you terminate the Services before the end of the Initial Term or the Renewal Term, whichever is then applicable: (a) AWP will not refund to you any fees paid in advance of termination, and (b) you will be required to pay the lesser of 3 times the standard monthly charge or 100% of AWP's standard monthly charge for each month remaining in the term, unless otherwise expressly provided in this Agreement.. AWP may terminate this Agreement at any time and for any reason by providing to you 30 days' prior written notice of termination. If AWP terminates this Agreement, AWP will refund to you the pro-rata portion of pre-paid fees attributable to Services not yet rendered as of the termination date, unless otherwise expressly provided in this Agreement.
1.3 Liability and Obligations on Termination. If the Agreement expires or is terminated for any reason, AWP is not liable to you because of the expiration or termination for compensation, reimbursement or damages on account of the loss of prospective profits, anticipated sales, goodwill or on account of expenditures, investments, leases or commitments in connection with your business, or for any other reason whatsoever flowing from the termination or expiration. If you terminate this Agreement, AWP will not relieve you of any obligations to pay fees and costs accrued before the termination date or any other amounts you owe to AWP under this Agreement.
1.4 Charges. You will pay all charges for your use of the Services at the then current AWP prices, which will be exclusive of any applicable taxes. You are responsible for paying all federal, state, and local sales, use, value added, excise, duty and any other taxes assessed with respect to the Services, other than taxes based on AWP's net income.
1.5 Payment. You will pay all charges for Services in advance according to the then current price for the Services. You must choose to pay for the Services either by credit card or upon your receipt of an invoice. If you choose to pay by credit card, you authorize AWP to charge your credit or debit card to pay for any charges that may apply to your account. You must notify AWP of any changes to your card account (including, applicable account number or cancellation or expiration of the account), your billing address, or any information that may prohibit AWP from charging your account. If you choose to be invoiced for Services, AWP will send an invoice to you for the Services for the period for which you have registered for the Services. You will pay to AWP the amount indicated in each invoice by the due date reflected on the invoice. If you fail to pay any fees and taxes within 10 days from the applicable due date for credit card or invoice payments, AWP will assess late charges equal to the lesser of 1.5% per month or the maximum allowable under applicable law. Your failure to fully pay any fees and taxes within 10 days after the applicable due date is a material breach of this Agreement, justifying AWP in suspending its performance and terminating this Agreement. If AWP terminates for your material breach, you must still pay past due fees plus interest. You are responsible for any costs AWP incurs in enforcing collection, including reasonable attorneys' fees, court costs and collection agency fees. If you reinstate Services, you must pay any fees associated with reinstating Services.
2.1 Your Information. You represent and warrant to AWP that (i) all information you provide for purposes of establishing and maintaining the Services is accurate; (ii) if you are an individual, you are at least eighteen years of age; (iii) you will not use the Services for the development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles in any country listed in Country Groups D:4 and D:3 of Supplement No. 1 to Part 740 of the United States Export Administration Regulations, and (iv) you will not provide access to the Services to any person (including a natural person or government or private entity) located in or a national of any embargoed or highly restricted country under United States Export Regulations, which include as of September, 2005, Cuba, Iran, Libya, North Korea, Sudan or Syria. You agree that AWP may, without notice and without liability to you report to the appropriate governmental authorities any conduct by you that AWP reasonably believes violates applicable law, and provide any information that AWP has about you in response to a formal or informal request from a law enforcement or government agency or in response to a formal request in a civil action that on its face meets the requirements for such a request.
2.2 Applicable Policies and Guidelines. The AWP Acceptable Use And Service Guidelines (the "Usage Guidelines") govern the general policies and procedures for use of the Services. AWP's On-line Privacy Statement governs how AWP collects, stores, processes and uses information associated with your use of the Services. The Usage Guidelines and the On-line Privacy Statement are posted on AWP's Web site at www.ancientwisdompro.com/hostingaup.htm (or such other location as AWP may specify) and may be updated from time-to-time. YOU SHOULD CAREFULLY READ THE USAGE GUIDELINES. BY USING THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF THE USAGE GUIDELINES AND ANY MODIFICATIONS TO THE TERMS. AWP MAY TERMINATE YOUR ACCOUNT FOR ANY VIOLATION OF THE USAGE GUIDELINES OR THIS AGREEMENT.
2.3 Bandwidth, Storage, and E-Mail Usage. For Services, you will not exceed the bandwidth, storage and E-mail usage limits in the Order Form. If you use any bandwidth or storage space in excess of the agreed upon number of megabytes per month or if you exceed E-Mail storage and attachment size limitations, AWP may, in its sole discretion, assess you with additional charges, suspend the Service, or terminate this Agreement. If AWP elects to take any corrective action, AWP will not refund any unused pre-paid fees. Your use of your account and access to it is your responsibility. You are responsible for any unauthorized access to your account resulting in bandwidth, storage and/or E-mail usage exceeding the limits in the Order Form and resultant charges.
2.4 Bulk or Commercial E-Mail. You must obtain Our advance approval for any bulk or commercial e-mail, which will not be given unless you are able to demonstrate, at a minimum, that your intended recipients have given their consent to receive e-mail via some affirmative means, such as an opt-in procedure, your procedures for soliciting consent include reasonable means to ensure that the person giving consent is the owner of the e-mail address for which the consent is given, you retain evidence of the recipient's consent in a form that may be promptly produced on request, and you honor the recipient's and Our requests to produce consent evidence within 72 hours of receipt of the request. You may not obscure the source of your e-mail in any manner. Your e-mail must include the recipient's e-mail address in the body of the message or in the "TO" line of the e-mail. These policies apply to messages sent using the Services, or to messages sent from any network by you or any person on your behalf that directly or indirectly refer the recipient to a site hosted via the Services. In addition, you may not use a third party e-mail service that does not practice similar procedures for all its customers. We may test and otherwise monitor your compliance with its requirements, including requesting opt-in information from a random sample of your list at any time.
2.5 Domain Names. As part of the Services, you will provide AWP with a registered domain name or names, or AWP will register domain name(s) you select if the domain name is available for registration and does not violate any Network Solutions' or other registration services' policies, or any law or regulation. You will promptly reimburse AWP for any fees AWP pays to Network Solutions or other registration services for registering and maintaining the domain name(s). If any dispute or cause of action arises out of or is related to your domain name used in connection with the Services, then upon your request, AWP will attempt to register with Network Solutions or other registrar an alternative domain name you chose. Upon registering your domain name, you are bound by the terms of the registrar's then current domain name policy and the policies of the national DNS registration authorities. AWP will not refund any fees you paid with respect to the registration of a domain name you are unable to use. AWP is not responsible for notifying you of any impending domain name expiration dates. Generally you must submit a renewal request at least 45 days prior to the expiration of the domain. You must keep your WHOIS information accurate and up-to-date. The e-mail address for the Administrative Contact in the WHOIS database must be the same as your billing e-mail address in AWP's records, and AWP may, but is not required to, change the e-mail address to comply with this requirement if necessary. Domain names may not be transferred within the first sixty (60) days of initial registration. Your rights to any domain name are governed by the rules and regulations of ICANN, the Registrar, and applicable law. Please note that requests for domain name transfers may not succeed for a variety of reasons not within AWP's control.
2.6 Security. You are solely responsible for any security breaches affecting servers or accounts under your control. If your server or website is responsible for or involved in an attack on or unauthorized access into another server or system, AWP will shut it down immediately.
2.7 Commercial Advertisements via E-Mail. You will not use AWP services, your account or server to send or facilitate in any way the transmission of unsolicited commercial email. AWP will enforce substantial penalties, including charging you for related network costs and terminating your account, for violations.
2.8 Customer assumes all risks related to processing of transactions related to electronic commerce.
2.9 Back Up Copy. You agree to maintain a current copy of all of your content hosted by AWP.
2.10 Prohibited Content. You may not publish or transmit pornography, any content that is excessively violent or that incites or threatens violence, contains harassing content or hate speech, is unfair or deceptive such as chain letters and pyramid schemes, is defamatory or violates a person's privacy, creates a risk to a person's safety or health, compromises national security, interferes with a investigation by law enforcement, improperly exposes confidential or proprietary information of another person, is intended to assist others in defeating technical copyright protections, infringes on another person's intellectual property, promotes illegal drugs, violates export control laws, relates to illegal gambling or illegal arms trafficking, is otherwise illegal or solicits conduct that is illegal under laws applicable to you or to AWP, or is otherwise malicious, fraudulent, or may result in retaliation against AWP by offended viewers. Content "published or transmitted" includes Web content, e-mail, bulletin board postings, chat, and any other type of posting or transmission that relies on the Internet.
2.11 Linking. You may not use the Services to publish directories, links or other information pointing to sites that contain content prohibited by this Agreement.
2.12 Resale. You may not resell the Services, either in whole or in part.
2.13 Excessive Use of System Resources. You may not use the Services in a way that consumes a disproportionate amount of system resources. For example, you may not distribute software to the public, provide a public file download Services or employ programs that consume excessive CPU capacity. AWP may suspend or terminate your Services for violation of this provision in addition to requiring you to pay Overage Fees as described in your hosting plan.
2.14 Newsgroup, Chat Forums, Other Networks. You must comply with the rules and conventions for postings to any bulletin board, chat group or other forum in which you participate, such as IRC and USENET groups including their rules for content and commercial postings. These groups usually prohibit the posting of off-topic commercial messages, or mass postings to multiple forums. You must comply with the rules of any other network you access or participate in using the Services.
2.15 Internet Abuse. You may not use AWP's Services to engage in illegal, abusive, or irresponsible behavior, including: · Unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures (including those belonging to Us and our Subscribers) without express authorization of the owner of the system or network; · monitoring data or traffic on any network or system without the authorization of the owner of the system or network; · Interference with service to any user, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks; · Use of an Internet account or computer without the owner's authorization, including, but not limited to Internet scanning (tricking other people into releasing their passwords), password robbery, security hole scanning, and port scanning; · Forging of any TCP-IP packet header or any part of the header information in an e-mail or a newsgroup posting; or · Any conduct that is likely to result in retaliation against AWP's Services or network, including engaging in behavior that results in any server under your control being the target of a denial of service (DoS) attack.
2.16 Cooperation with Investigations and Legal Proceedings. AWP may, without notice to you, report to the appropriate authorities any conduct by you and your customers that it believes violates applicable law, and provide any information it has about you in response to a formal or informal request from a law enforcement or regulatory agency, or in response to a formal request in a civil action that on its face meets the requirements for such a request.
2.17 Notices. Notices to AWP shall be given by means of electronic mail to hosting [at] awpny.com. Notices to you shall be given via electronic mail to the individual designated as the Primary Contact. Notices are deemed received on the day transmitted, or if that day is not a business day, on the first business day following the day transmitted.
3.1 Your License Grant to AWP. You grant to AWP a non-exclusive, worldwide, and royalty-free license for the Initial Term and the Renewal Term, if applicable, to edit, modify, adapt, translate, exhibit, publish, transmit, participate in the transfer of, reproduce, create derivative works from, distribute, perform, display, and otherwise use your content as necessary for the purposes of rendering and operating the Services to you under this Agreement. You expressly: (a) grant to AWP a license to cache materials distributed or made available for distribution via the Services, including content supplied by third parties, and (b) agree that this caching is not an infringement of any of your intellectual property rights or any third party's intellectual property rights.
3.2 Your Warranties And Representations to AWP. You warrant, represent, and covenant to AWP that: (a) you are at least 18 years of age; (b) you possess the legal right and ability to enter into this Agreement; (c) you will use the Services only for lawful purposes and in accordance with this Agreement and all applicable policies and guidelines; (d) you will be financially responsible for the use of your account; (e) you have acquired or will acquire all authorization(s) necessary for hypertext links to third-party Web sites or other content; (f) you have verified or will verify the accuracy of materials distributed or made available for distribution via the Services, including your content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted, and (g) your content does not and will not infringe or violate any right of any third party (including any intellectual property rights) or violate any applicable law, regulation or ordinance.
3.3 AWP Materials And Intellectual Property. All materials, including any computer software (in object code and source code form), data or information that AWP or its suppliers or agents develop or provide under this Agreement, and any know-how, methodologies, equipment, or processes AWP uses to provide the Services to you, including all copyrights, trademarks, patents, trade secrets, and any other proprietary rights inherent therein and appurtenant thereto will remain AWP's or its suppliers' sole and exclusive property. AWP will also maintain and control ownership of all Internet protocol ("IP") numbers and addresses that AWP may assign to you. AWP may, in its sole discretion, change or remove any and all IP numbers and addresses. Upon expiration, cancellation or termination of this Agreement, Customer shall relinquish any Internet protocol (“IP”) numbers, addresses or address blocks assigned to Customer by AWP or its network services supplier (but not the URL or top level domain connected therewith).
3.4 Content Protected by Copyright. You may not use the Services to publish, distribute, or otherwise copy any music, software, art, or other work protected by copyright law unless you have been expressly authorized by the owner of the copyright for the work to copy the work in that manner or you are otherwise permitted by established United States copyright law to copy the work in that manner. You may not use a domain name that infringes on a third party's trademark, service mark, or other proprietary right.
4.1 Investigation of Violations. AWP may investigate any reported violation of this Agreement, or its policies or any complaints and take any action that it deems appropriate and reasonable under the circumstance to protect its systems, facilities, customers or third parties. AWP will not access or review the contents of any e-mail or similar stored electronic communications except as required or permitted by applicable law or legal process.
4.2 Actions. AWP may restrict or remove from its servers any content that violates this Agreement or related policies or guidelines, or is otherwise objectionable or potentially infringing on any third party's rights or that potentially violates any laws. If AWP becomes aware that you have possibly violated this Agreement, any related policies or guidelines, third party rights or laws, AWP may immediately take corrective action, including: (a) issuing warnings, (b) suspending or terminating the Service, (c) restricting or prohibiting any and all uses of content hosted on AWP's systems, and (d) disabling or removing any hypertext links to third-party Web sites, any of your content distributed or made available for distribution via the Services, or other content not supplied by AWP that, in AWP's sole discretion, may violate or infringe any law or third-party rights or that otherwise exposes or potentially exposes AWP to civil or criminal liability or public ridicule. It is AWP's policy to terminate repeat infringers. These rights of action, however, do not obligate AWP to monitor or exert editorial control over the information made available for distribution via the Services. If AWP takes corrective action because of a possible violation, AWP will not refund to you any fees you paid in advance of the corrective action.
4.3 Disclosure Rights. To comply with applicable laws and lawful governmental requests, to protect AWP's systems and customers, or to ensure the integrity and operation of AWP's business and systems, AWP may access and disclose any information it considers necessary or appropriate, including, user profile information (i.e., name, e-mail address, etc.), IP addressing and traffic information, usage history, and content residing on AWP's servers and systems. AWP may report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. To the extent any inconsistency exists between any terms of AWP's On-line Privacy Statement and AWP's right to disclose under this section, AWP's right to disclose under this section will control.
5.1 AWP exercises no control over, and accepts no responsibility for, the content of the information passing through AWP's host computers, network hubs and points of presence, or the Internet. ALL SERVICES PERFORMED UNDER THIS AGREEMENT ARE PERFORMED "AS IS" AND WITHOUT WARRANTY AGAINST FAILURE OF PERFORMANCE INCLUDING, ANY FAILURE BECAUSE OF COMPUTER HARDWARE OR COMMUNICATION SYSTEMS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, AWP DOES NOT MAKE AND DISCLAIMS, AND YOU WAIVE ALL RELIANCE ON, ANY REPRESENTATIONS OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING THE SERVICES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. AWP DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
5.2 Disclaimer of Actions Caused by and/or Under the Control of Third Parties. AWP DOES NOT AND CANNOT CONTROL THE FLOW OF INFORMATION TO OR FROM AWP ’S NETWORK AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT CUSTOMER’S CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF). AWP CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY AWP DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.
5.3 We are under no duty, and does not by this Agreement undertake a duty, to monitor or police your activities and disclaims any responsibility for any misuse of AWP's Services or network. We have no obligation to any person who has not entered into an agreement for Services.
6.1 Limitations. IN NO EVENT WILL AWP OR ITS SUPPLIERS HAVE ANY LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF INFORMATION DISTRIBUTED OR MADE AVAILABLE FOR DISTRIBUTION VIA THE SERVICES THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES. NEITHER AWP NOR ITS SUPPLIERS WILL HAVE LIABILITY WITH RESPECT TO AWP'S OBLIGATIONS UNDER THIS AGREEMENT, OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF AWP HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES. THE LIABILITY OF AWP AND ITS SUPPLIERS TO YOU FOR ANY REASON AND UPON ANY CAUSE OF ACTION IS LIMITED TO THE AMOUNT YOU ACTUALLY PAID TO AWP UNDER THIS AGREEMENT DURING THE 3 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. THE FEES FOR THE SERVICES SET BY AWP UNDER THIS AGREEMENT HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY, YOU RELEASE AWP AND ITS SUPPLIERS FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIMS IN EXCESS OF THE LIMITATION STATED IN THIS SECTION 6.1.
6.2 Delays and Interruption of Service. AWP and its suppliers are not liable for any temporary delay, outages or interruptions of the Services. Further, AWP is not liable for any delay or failure to perform its obligations under this Agreement, where the delay or failure results from any act of God or other cause beyond its reasonable control (including, any mechanical, electronic, communications or third-party supplier failure). AWP SHALL NOT BE LIABLE FOR ANY LOSS OF DATA RESULTING FROM DELAYS, CORRUPTION OF DATA, NONDELIVERIES, MISDELIVERIES OR SERVICE INTERRUPTIONS. CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR THE SELECTION, USE AND SUITABILITY OF THE SERVICES, AND AWP SHALL HAVE NO LIABILITY THEREFORE. EXCEPT TO THE EXTENT OF AWP GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER AWP NOR ITS NETWORK SERVICES SUPPLIER WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO AWP'S OR CUSTOMER’S TRANSMISSION FACILITIES OR PREMISE EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT OR DESTRUCTION OF CUSTOMER’S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF AWP’S OR ITS NETWORK SERVICE SUPPLIER’S NEGLIGENCE.
6.3 Consequential Damages. EXCEPT FOR THE PARTIES’ INDEMNITY OBLIGATIONS IN SECTION 7, IN NO EVENT WILL EITHER PARTY BE LIABLE OR RESPONSIBLE TO THE OTHER FOR ANY TYPE OF INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF DATA, OR INTERRUPTION OR LOSS OF USE OF SERVICE OR EQUIPMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY OR OTHERWISE.
6.4 Third Party Products. AWP may provide Customer access to other third party software and/or services through reseller relationships AWP has established with certain commercial vendors. AWP makes no representations or warranties, express or implied, regarding any third party products. Customer is bound by the terms and conditions as indicated by the third party software vendor. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THIRD PARTY PRODUCTS IS AT CUSTOMER’S SOLE RISK AND SUCH THIRD PARTY PRODUCTS ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND FROM AWP OR SUCH THIRD PARTY VENDORS, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. CUSTOMER AGREES TO OBSERVE THE TERMS OF ANY LICENSE AND/OR APPLICABLE END USER SUBSCRIBER AGREEMENT FOR THIRD PARTY PRODUCTS AND THAT CUSTOMER SHALL BE FULLY LIABLE TO THIRD PARTY PROVIDERS AND AWP WITH RESPECT TO ANY IMPROPER USE OF SUCH THIRD PARTY PRODUCTS OR VIOLATION OF LICENSE AGREEMENTS WITH THEM AND/OR APPLICABLE END USER SUBSCRIBER AGREEMENTS.
7.1 You release and hold harmless, and agree to indemnify, AWP and its affiliates and suppliers (and their respective employees, directors and representatives) against any and all claims, actions, proceedings, suits, liabilities, damages, settlements, penalties, fines, costs or expenses (including, reasonable attorneys' fees and other litigation expenses) incurred by AWP or its suppliers, arising out of or relating to: (a) your violation or breach of any term, condition, representation or warranty of this Agreement, or any applicable policy or guideline; (b) your improper or illegal use the Services; or (c) your violation, alleged violation, or misappropriation of any intellectual property right (including trademark, copyright, patent, trade secrets) or non-proprietary right of a third party (including defamation, libel, violation of privacy or publicity).
8.1 Entire Agreement. This Agreement, in conjunction with all policies and guidelines incorporated by reference, constitutes the entire agreement between you and AWP with respect to the subject matter of the Agreement, and there are no representations, understandings or agreements that are not fully expressed in this Agreement and the related policies and guidelines.
8.2 No Fiduciary Relationship; No Third-Party Beneficiaries. AWP is not the agent, fiduciary, trustee or other representative of you. Except for the rights of AWP's suppliers under sections 6 and 7, nothing expressed or mentioned in or implied from this Agreement is intended or will be construed to give to any person (other than the parties to this Agreement) any legal or equitable right, remedy or claim under or in respect to this Agreement. This Agreement and all of its representations, warranties, covenants, conditions and provisions are intended to be and are for the sole and exclusive benefit of the parties to this Agreement.
8.3 Amendments. Except as expressly provided in this Agreement, no amendment, change, waiver, or discharge of this Agreement is valid unless in writing and signed by the parties.
8.4 Identification. AWP may, free of any obligation to pay compensation, use your name and identify you as a AWP client, in advertising, publicity, or similar materials distributed or displayed to prospective clients.
8.5 Choice of Law and Forum. THIS AGREEMENT IS GOVERNED BY THE LAWS OF THE UNITED STATES AND THE STATE OF NEW YORK, WITHOUT REFERENCE TO RULES GOVERNING CHOICE OF LAWS. ANY ACTION RELATING TO THIS AGREEMENT MUST BE BROUGHT IN THE FEDERAL OR STATE COURTS LOCATED IN OR CLOSEST TO TOMPKINS COUNTY, NEW YORK, AND YOU IRREVOCABLY CONSENT TO THE JURISDICTION OF THESE COURTS.
8.6 Compliance With Laws. You will comply with all applicable laws and regulations and will indemnify and save AWP harmless from your failure to so comply. AWP will not have to perform any obligations set forth in this Agreement if the performance would violate any present or future law, regulation or policy of any applicable government.
8.7 Non-Assignment. You may not assign this Agreement or any right or obligation under this Agreement, by operation of law or otherwise, without AWP's prior written consent. AWP may assign its rights and obligations under this Agreement, and may utilize affiliates and agents in performing its duties and exercising its rights, without your consent. This Agreement are binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns.
8.8 No Waiver. AWP's failure to enforce the strict performance of any provision of this Agreement does not constitute a waiver of AWP's right to subsequently enforce the provision or any other provisions of this Agreement.
8.9 Severability. If any term or provision of this Agreement is deemed invalid, void or unenforceable either in its entirety or in a particular application, the remainder of this Agreement, if applicable, will remain in full force and effect and, if the subject term or provision is deemed to be invalid, void or unenforceable only with respect to a particular application, the term or provision will remain in full force and effect with respect to all other applications.
8.10 Headings. The section headings used in this Agreement are for reference and convenience only and will not enter into the interpretation of the Agreement.
8.11 Survival. All provisions of this Agreement relating to your warranties, intellectual property rights, limitation and exclusion of liability, your indemnification obligations and payment obligations will survive the termination or expiration of the Agreement.
THIS DOCUMENT IS COPYRIGHT ©2003 BY ANCIENT WISDOM PRODUCTIONS AND MAY NOT BE DUPLICATED OR REPRODUCED IN WHOLE OR IN PART BY ANY PARTY OTHER THAN ANCIENT WISDOM PRODUCTIONS.