IMPORTANT - PLEASE READ CAREFULLY
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE REGISTERING FOR THE SERVICE OR USING OR VIEWING ANY FEATURES ON THE AGENT STUDIO SITE. 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 18 YEARS OF AGE OR OLDER AND ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOURSELF AND/OR YOUR BUSINESS OR CORPORATION AND BIND YOURSELF AND/OR THE BUSINESS OR CORPORATION TO THE TERMS IN THIS AGREEMENT. IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, OR ARE UNDER 18 YEARS OF AGE, 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.
- DESCRIPTION OF THE SERVICE. Once you become a registered subscriber by completing a registration form and being accepted by Agent Studio ("Subscriber"), you may use the technology available through the Service to build your website ("Subscriber Site"). In this way, each subscriber will be a part of the Agent Studio of e-business sites. Specifically, the Service allows you to: (a) enter content, including, without limitation, data, text, blog posts, comments, graphics, images, video and icons, related to your e-business ("Content"), as well as Site Materials (defined in Section 4.1) provided by Agent Studio; (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"), (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.
- ACCOUNT AND PASSWORD.
- 3.1 SUBSCRIBER ACCOUNT AND PASSWORD. You must be at least 18 years old to use the Service. To open an account and access the Service, you must complete the registration process by providing us with current, complete, with accurate information relating to all questions on the registration form on the Agent Studio 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 you or your business is unsuitable for the Services or for Agent Studio in general. 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 or omissions that occur under your account, whether or not caused by you. 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 Agent Studio 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 Subscribers, including, but not limited to, service outages and material modifications to our Services.
- 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 Subscriber 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 and liable 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 and liable for all acts or omissions that occur in connection with Customer accounts, including misuse of the Service, Site Material (as described below), or Content and any fees incurred under your or your Customer's 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 reissuance 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.
- 3.4 SECURITY. We endeavor to maintain the security of the Registration Data through the use of passwords. Moreover, we strive to protect the security of your credit card and billing information through the use of the secure server software (SSL) to encrypt data. You understand that the technical processing and transmission of certain Registration Data, Content or Public Information may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. We do not and cannot control the flow of data to or from Agent Studio'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 a Subscriber's or his/her Customers' connections to the Internet (or portions thereof). Therefore, we disclaim any and all liability resulting from or related to such events.
- PROPRIETARY RIGHTS AND LICENSE
- 4.1 AGENT STUDIO'S PROPRIETARY RIGHTS. All rights, title, and interest in and to the software tools and services provided by Agent Studio, including any applications, features, functionality, modifications or other software created by us for your Subscriber Site (the "Software"), and any all data, content, graphics, forms, artwork, images, photographs, functional components, audio clips, video clips, and documentation and other material on, in or made available through the Service ("Site Material"), as well as the selection, coordination, arrangement, and organization and enhancement of the Site Material provided by Agent Studio, is and shall remain the intellectual property of Agent Studio or its licensors. Except as provided for in this Agreement, no rights or implied licenses in the Software or Site Material provided by Agent Studio are granted to you by this Agreement. All Software and Site Material is protected pursuant to United States copyright, trademark, patent and other applicable laws. You agree not to remove or alter any copyright notice or any other proprietary notice on any Software or Site Materials. As between any user and Agent Studio, all names, trademarks, service marks, certification marks, symbols, slogans or logos appearing on the Agent Studio Site are proprietary to Agent Studio or its affiliates, licensors, or suppliers. Use or misuse of these trademarks is expressly prohibited and may violate federal and state trademark law. You further agree to notify us promptly in writing if you or any of your Customers believes any of the Site Material 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 your 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 third parties, including, without limitation, for any loss or damage of any kind incurred as a result of the use of any of the Content. In addition, Agent Studio does not accept unsolicited ideas about new product, advertising, marketing or packaging ideas, concepts or improvements. If you provide us with any such ideas, such ideas shall be considered non-proprietary and non-confidential, and shall become the exclusive property of Agent Studio, which may or may not use such ideas for any purpose. The marketing staff of Agent Studio and its consultants may very well be considering an identical or similar idea. The purpose of this policy is to avoid confusion about the ownership of new concepts and ideas.
- 4.2 In connection with your right to use the Service, you are granted a nonexclusive, non-sublicensable, nontransferable, terminable, limited license (the "License") to use the Software and Site Material in accordance with and subject to the terms and conditions of this Agreement, and solely to create and operate your Subscriber Site. The Software includes any additional functionality or applications created by Agent Studio for your particular Subscriber Site. You have no right to receive, use or examine any source code or design documentation relating to the Software, and you may not modify, translate, reverse engineer, decompile or create derivative works based upon the Software. Such Software may be used by you solely for purposes of creating and operating your Subscriber Site through Agent Studio, and Agent Studio retains all right, title and interest in, and all patent rights, copyrights, trademarks, trade secret rights and other proprietary or intellectual property rights with respect to, the Software and all portions and derivative works thereof. This limited License granted to you does not constitute a sale of the Software or Site Material, or any portion or copy thereof, and shall cease upon the termination of your use of the Service.
- 5.1 COMPLIANCE WITH THE LAWS. You represent and warrant that this Agreement, your use of your Subscriber Site, delivery of your Content, Private Content or any portion hereunder pursuant to this Agreement, or use of your Trademarks in accordance with Section 4.3, will not cause us to be in violation of any law, rule or regulation 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 or agreement.
- 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, Site Material, or your Subscriber Site for any purpose not authorized or contemplated under this Agreement; (b) lend, sell, lease, rent, sublicense, assign, or otherwise transfer any Site Material provided by Agent Studio or any portion of the Service; (c) remove, obscure, or alter any notice of intellectual property rights present on or in the Site Material, Software or the Agent Studio Site, 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 Site Material; (e) use the Software or Site Material provided by Agent Studio 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 Site Material or Agent Studio 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 Subscribers 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 Site Material, Software or Service (including, without limitation, import, export and copyright laws); (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 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) any unauthorized use of the Site Material, Software or Agent Studio Site could cause irreparable harm to Agent Studio and that in the event of such unauthorized use, Agent Studio shall be entitled to an injunction in addition to any other remedies available at law or in equity; (b) the Site Material may contain errors, missions, inaccuracies, or outdated information; (c) we make no representations or warranties as to the completeness, accuracy, adequacy, truthfulness, currency, or reliability of any Site Material or your Content, and we are not liable to you or any third party for the lack of any of the foregoing; and (d) we do not endorse or support your 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, tortious, 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 Agent Studio. It is entirely your responsibility to follow all applicable copyright and other laws that pertain to your Subscriber 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. In addition to your obligations in Section 12.1, you shall be responsible for any and all costs or expenses that may be incurred by us due to the posting of your Content.
- 5.5 REMOVAL OF CONTENT. We do not have any obligation to monitor any of the Content or any use of your Subscriber Site by your Customers. 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 subscribers or customers.
- 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 Subscriber Site 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.
- 6.3 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) Agent Studio will be an express third party beneficiary of each such agreement, and (b) Section 3.2 (Customer Accounts and Passwords); Section 5 (Restrictions); and Section 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."
- 6.4 THIRD PARTY LINKS. Your Subscriber Site may contain links to Web sites operated by parties other than Agent Studio. 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.
- HOSTING SERVICES
- 7.1 DESCRIPTION. Under the Service, we will use commercially reasonable efforts to make your Subscriber Site accessible via the Internet (at Agent Studio's facilities or at the facilities of Agent Studio' service providers), except during scheduled maintenance periods, and subject to the terms of this Agreement. These rights granted to you are personal, and you will not, nor allow others, to rent, lease, sell, transfer, assign, sublicense or use the Service for timesharing or service bureau purposes or otherwise for the benefit of a third party. You may not modify, translate, or create derivative works based on the Service, or permit other individuals to do so. You may not attempt, or allow others to attempt, to disassemble, decompile, "unlock," reverse translate, or in any manner decode, customize, or modify any software or code obtained by using or accessing the Service for any reason. 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.
- 7.2 EXCEPTIONS. In addition to the provisions of Section 10.2 (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 or Software 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 inactions of third parties who provide or control Internet services.
- 7.3 DOMAIN NAME SELECTION. We agree to host your Subscriber 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 renewal 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.
- AGENT STUDIO HOTEL BOOKING ENGINE
- 8.1 DESCRIPTION. The Agent Studio Hotel Booking Engine is powered and maintained by Expedia Affiliate Network, and may be included on the Sites provided by Agent Studio. The Agent Studio Hotel Engine provides Customers a means of booking hotel reservations through your Site. The rates and listings provided through the Agent Studio Hotel Engine are provided by the Expedia Affiliate Network, and are subject to change based on availability. The Agent Studio Hotel Engine may be activated upon your registration with Agent Studio, depending on the type of registration.
- 8.2 BOOKING, MODIFICATION, AND CANCELLATION PROCEDURES. All reservations made through the Agent Studio Hotel Booking Engine will be confirmed by the Expedia Affiliate Network. Once confirmed and finalized by Expedia Affiliate Network, you will receive a copy of each reservation confirmation made through your Site. Bookings made through your Site may only be cancelled by you, either by calling the Reservations Support Department at 1-800-637-5044 or by accessing the relevant booking through your Agent Studio online account. Bookings made through your Site may only be changed or modified by you by calling the Reservations Support Department at 1-800-637-5044. Agent Studio does not impose any fees for booking, modifying, or cancelling any hotel reservations made through the Agent Studio Hotel Booking Engine, but Agent Studio will pass on to you or the applicable Customer, and that Customer must agree to pay prior to booking, such fees if a hotel chooses to apply those fees to a transaction made through the Agent Studio Hotel Booking Engine. Any and all refunds will be issued by the Expedia Affiliate Network.
- 8.4 COMMISSION. Agent Studio will pay you 10% of the net rate of all hotel reservations made through your Site, so long as those reservations are ultimately fulfilled, consumed and completed by the applicable Customer. Commission payments by Agent Studio to you will occur at the end of the following month immediately following the check-out date of the applicable User's hotel reservation, and will be paid and delivered to the name and address you submitted to Agent Studio at the time of registration with Agent Studio. Unless otherwise directed by request in writing to the Agent Studio Hotel Reservations Department, if the cumulative total of your commissions earned through the Agent Studio Hotel Booking Engine within one month is not in excess of $25, Agent Studio will withhold the distribution of your commission payment until the next monthly payment date on which you are owed in excess of $25 for such commissions. No commission paid pursuant to a reservation made through the Agent Studio Hotel Booking Engine is in any way based upon your industry accreditation number, should you have provided such at the time of registration with Agent Studio. You are required by the IRS to submit to Agent Studio a valid W9 Tax ID Form in order to receive commission payments; failing receipt by Agent Studio of your valid W9 Tax ID Form, Agent Studio may withhold your commission payments in excess of $400, cumulatively within one calendar year, until such form has been received and accepted by Agent Studio.
- TECHNICAL SUPPORT. During the term of this Agreement, we will make certain technical support and assistance applicable to the Service available Monday through Friday (except for federal holidays), U.S. Eastern Standard Time. Such support and assistance will be provided only to you and will consist of technical assistance via telephone or email from an Agent Studio technician for Customer questions that you are not able to resolve. You may contact us at: (866) 230-4536. Customers will not be entitled to contact us directly for technical support unless expressly authorized by us. Except as otherwise agreed to by Agent Studio in writing, you will not receive any personal training from us during the term of this Agreement. Agent Studio reserves the right to charge you at our then current hourly rates set forth in our Agent Studio Price List for any troubleshooting, break/fix or other services required for us to correct problems caused by you or your Customers (as documented by us with a reasonable amount of certainty through root cause analysis). Prior to invoicing you for Subscriber or Customer caused problems; we will notify you of our determination and will provide a summary of the root cause analysis.
- FEES AND PAYMENT. Your fees for the Service are set forth in the current Agent Studio Price List, which is available from Agent Studio. 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 Agent Studio 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.
- NO WARRANTY; DISCLAIMER OF WARRANTIES. The Software, Service and any Site Material are provided on an "As Is" and "As Available" basis, and your use of the Software, Service and any Site Material 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, NONINFRINGEMENT 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 SOFTWARE, THE SERVICE OR ANY SITE MATERIAL, OR THE PERFORMANCE, AVAILABILITY OR FUNCTIONALITY THEREOF. WE DO NOT, NOR DO OUR LICENSORS, WARRANT THAT THE SOFTWARE AND THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE, OR THAT DEFECTS IN THE SOFTWARE, THE SERVICE OR ANY SITE MATERIAL 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 SUBSCRIBER 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 SOFTWARE, THE SERVICE, OR ANY SITE MATERIAL WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS OR THE EXPECTATIONS OF YOUR CUSTOMERS; (B) THE SITE MATERIAL, SOFTWARE OR SERVICE 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. YOU ARE SOLELY RESPONSIBLE FOR EVERYTHING CONTAINED ON YOUR SUBSCRIBER SITE AND ANY CUSTOMER'S USE OF YOUR SUBSCRIBER SITE.
- 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, Trademarks 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 any term or condition contained in this Agreement, including without limitation, Sections 5 (Restrictions), 6.2 (Customer Privacy), or 6.3 (Requirements for Users); and (h) you will not make any representations or warranties to Customers about the Software, the Service, Site Materials, your Content, or the Agent Studio Site, other than those expressly authorized by Agent Studio in writing.
- 13.1 You, at your expense, will defend, indemnify, and hold Agent Studio, its affiliates, subsidiaries, directors, officers, employees, contractors, representatives, suppliers, contractors, licensors and agents ("Agent Studio Indemnitees") harmless from and against any and all claims, suits, demands, proceedings, losses, or expenses (including, without limitation, court costs, experts' fees and attorney's fees) ("Claims") due to or arising out of (a) Content provided by you or any other content or materials on your Subscriber Site; (b) any hyperlinks posted or displayed on your Subscriber Site or any materials or information related to such hyperlinks; (c) use or misuse of the Software, the Service, or Site Material 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 Site Material or use of your selected domain name for your Subscriber Site; (e) any violation or breach of this Agreement; (f) any intentional or negligent act by you; or (g) any unauthorized commitment, representation, or warranty made by you to Customers with respect to the Software, the Service, Site Material, Agent Studio Site or Agent Studio in general, and you shall indemnify and hold Agent Studio Indemnitees harmless from and against all judgments, losses, liabilities, damages, costs, and expenses (including reasonable attorneys' fees and attorneys' disbursements) arising out of or incurred in connection with such Claims. You may not settle any Claim without the prior written consent of Agent Studio. Agent Studio or its licensors may assume the defense of any Claim, at your sole cost and expense, and you shall cooperate in all reasonable respects in such defense. You shall have the right to employ separate counsel in any Claim and to participate in the defense thereof. If Agent Studio or its licensors do not notify you that it elects to undertake the defense thereof, you shall have the right to defend the Claim with counsel reasonably acceptable to Agent Studio, subject to the right of Agent Studio to assume, at their sole cost and expense, the defense of any Claim at any time prior to the settlement or final determination thereof.
- 13.2 LIMITATION OF LIABILITY. IN NO EVENT WILL WE, OR OUR AFFILIATES, SUBSIDIARIES OR LICENSORS, 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, OR OUR AFFILIATES, SUBSIDIARIES OR LICENSORS, HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL OUR, OR OUR OR OUR AFFILIATES', SUBSIDIARIES' OR LICENSORS', 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, OR CONTENT EXCEED THE AMOUNTS PAID BY YOU TO AGENT STUDIOS FOR SUCH SERVICE DURING THE TWELVE (12) MONTHS PRECEDING THE IMPOSITION OF SUCH LIABILITY.
- TERM AND TERMINATION.
- 14.1 TERM. This Agreement commences upon your registration as a Subscriber, and will continue until terminated in accordance with Section 9 (Fees and Payment) or this Section 14.1. 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 and/or the Agent Studio Site, cancel your password, or restrict your use or your Customers' use of the Service or Site Material in whole or in part, including, but not limited, for scheduled maintenance or any breach of this Agreement by you or your Customers.
- 14.2 EFFECT OF TERMINATION; SURVIVAL OF TERMS. Upon the expiration or termination of this Agreement, we will immediately cease providing the Service. 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 Content provided by Agent Studio, except that you may retain a reasonable number of hard copies of such Content for your internal record keeping. Any and all of your payment obligations under this Agreement for the Service provided through the date of termination will immediately become due. The provisions of Sections 5 (Restrictions), 6.2 (Customer Privacy), 6.3 (Requirements for Customers), 6.4 (Third Party Links), 9 (Proprietary Rights), 10 (No Warranty; Disclaimer of Warranties), 11 (Your Warranties), 12 (Indemnity by You), 13 (Limitation of Liability), 14.2 (Effect of Termination; Survival of Terms), and 15 (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.
- GENERAL PROVISIONS:
- 15.1 ASSIGNMENT. You may not assign, transfer or sublicense, by operation of law or otherwise, this Agreement or any duties, rights or obligations hereunder without the prior written consent of Agent Studio. We may assign, transfer or sublicense 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.
- 15.2 GOVERNING LAW; FORUM SELECTION. This Agreement will be governed by and construed under the laws of the State of New Jersey without reference to conflict of law principles. The parties agree to submit to the personal and exclusive jurisdiction of the courts located within Burlington County, New Jersey, 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.
- 15.3 NO AGENCY OR THIRD PARTY BENEFICIARY. You and Agent Studio 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 Agent Studio. Neither party has any authority to enter into agreements of any kind on behalf of the other party. You and Agent Studio agree that there should be no third party beneficiary to this Agreement, including but not limited to your Customers.
- 15.4 NO WAIVER; SEVERABILITY. 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.
- 15.5 NOTICES. 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.
- 15.6 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.
- 15.7 AMENDMENTS. This Agreement may be amended by Agent Studio 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 thirty (30) days after being posted on the Agent Studio Site.
- 15.8 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. THE AGENT STUDIO SITE MUST NOT BE USED BY CHILDREN UNDER THE AGE OF 13.
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