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3.3.3 Interest. If it is determined, as a result of any inspection
or otherwise, that the actual amount of the royalties paid by Merchant is less than the amount
of the royalties payable by Merchant, then Merchant shall, in addition to paying such unpaid
royalties plus any fines, pay to TIAS.com interest, at the rate equal to the lesser of
twelve percent (12%) per annum and the maximum lawful rate, on the amount of the unpaid
royalties from the date that the royalty was due and payable to the date of payment. TIAS.com
may charge the amount of any interest payable by Merchant to a valid credit card account
provided by Merchant. Merchant specifically agrees that Merchant’s acceptance of the
interest determination shall not be a condition precedent to TIAS.com’s
authorization to charge the credit card.
3.3.4 Arbitration. All disputes concerning the determination of any
amounts payable under this Agreement shall be subject to expedited arbitration outside of the
American Arbitration Association ("AAA") before an attorney or expert who is
knowledge-able and experienced in matters similar to the transactions contemplated in this
Agreement and who is selected by mutual agreement of the parties. A party shall commence
arbitration by delivering written notice to the other party. If the parties fail to agree on
an attorney or expert as arbitrator within thirty (30) days after the date on which the notice
of commencement of arbitration is delivered, arbitration shall be by the AAA, subject to the
rules of the AAA then in effect. Judgment upon the award rendered in any arbitration may be
entered in any court having jurisdiction of the matter.
4. Representations and Warranties
4.1 Authority. Merchant represents and warrants to TIAS.com
that (i) it has all necessary rights and authority to enter into this Agreement and to perform
its obligations under this Agreement, and (ii) nothing contained in this Agreement nor
Merchant’s performance of any of its obligations under this Agreement will place Merchant in
breach of any other contract or obligation.
4.2 No Infringement. Merchant represents and warrants to TIAS.com
that the provision and use of any content, graphics and other materials provided by Merchant
for use in the creation, building, set up or operation of Merchant’s web pages (including
any third party advertising or content) for the Site will not (a) in any way infringe or
otherwise violate any copyright, patent, trademark, trade secret or other proprietary or
personal right of any third party, including any customer, or (b) violate any criminal or
civil law, rule or regulation.
4.3 Operation of Software. Merchant represents and warrants to TIAS.com
that all of the content, graphics and other materials provided by Merchant for use in the
creation, building, set up or operation of Merchant’s web pages (including content) for the
Site is free, and will be free of all viruses, Trojan horses, time bombs or other disabling
device. Merchant also represents and warrants to TIAS.com that any graphics provided
by Merchant for use in the creation, building, set up or operation of Merchant's web pages for
the Site is free, and will be free, of all copyright restrictions.
5. Limitations on Liability, Disclaimers, Indemnification
5.1 No Consequential Damages. NEITHER PARTY SHALL BE LIABLE TO
THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES OR FOR ANY
LOST OR IMPUTED PROFITS AS A RESULT OF ANY ACT OR OMISSION UNDER THIS AGREEMENT OR OF THE
TERMINATION OF THIS AGREEMENT, WHETHER FOR BREACH OF WARRANTY OR OTHERWISE, WHETHER LIABILITY
IS ASSERTED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE AND STRICT PRODUCT LIABILITY) AND
IRRESPECTIVE OF WHETHER THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR
DAMAGE. EACH PARTY HEREBY WAIVES ANY CLAIMS THAT THESE EXCLUSIONS DEPRIVE SUCH PARTY OF AN
ADEQUATE REMEDY.
5.2 No Additional Warranties. EXCEPT AS EXPRESSLY SET FORTH IN
THIS AGREEMENT. NEITHER PARTY MAKES ANY, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SITE OR MERCHANT'S WEB PAGES,
INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND
IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
MERCHANT ACKNOWLEDGES AND AGREES THAT (A) TIAS.com MAY ENCOUNTER
TECHNICAL OR OTHER DIFFICULTIES WHICH MAY HINDER ITS PERFORMANCE OF SERVICES UNDER THIS
AGREEMENT OR RESULT IN THE INTERRUPTION OF THE OPERATION OF THE SITE, (B) TIAS.com
MAKES NO REPRESENTATION OR WARRANTY THAT MERCHANT’S USE OF THE SITE WILL BE UNINTERRUPTED OR
ERROR-FREE OR AS TO THE RESULTS THAT WILL BE OBTAINED FROM MERCHANT’S USE OF THE SITE, AND
(C) TIAS.com DOES NOT AND CANNOT GUARANTY THE SECURITY OF ANY TRANSMISSIONS TO OR FROM
MERCHANT OR ANY OF ITS CUSTOMERS.
5.3 Indemnity. Merchant shall defend, indemnify, save and hold
harmless TIAS.com and each of its officers, directors, employees, agents, affiliates,
distributors and franchisees from any and all third party claims, demands, liabilities, costs
and expenses (including, but not limited to, reasonable attorneys' fees incurred in
investigating, defending and settling any such claim) resulting from Merchant’s breach of or
failure to perform any of its obligations under this Agreement or from the inaccuracy of any
representation or warranty provided by Merchant under this Agreement.
5.4 Claims. Upon the assertion of any claim or the commencement of
any suit or proceeding against TIAS.com by a third party for which TIAS.com
may seek indemnification from Merchant under this Agreement, TIAS.com shall promptly
notify Merchant of such claim and shall give Merchant reasonable opportunity to defend and/or
settle the claim at its own expense and with counsel of its own selection. Any delay by TIAS.com
in notifying Merchant of such claim shall not limit in any way Merchant’s indemnification
obligation unless such delay materially and adversely prejudice Merchant's ability to defend
against such claim. TIAS.com shall (i) cooperate with Merchant in the defense of any
claim, (ii) at all times have the right fully to participate in such defense of the claim at
its own expense, and (iii) not be obligated, against its consent, to participate in any
settlement which it reasonably believes would have an adverse effect on its business or
property rights. TIAS.com shall not settle any claim for which its seeks
indemnification from Merchant without the prior written consent of Merchant, which consent
shall not be unreasonably withheld.
6. Independent Contractors.
6.1 Independent Contractors. Performance by the parties under
this Agreement shall be as independent contractors. Nothing contained in this Agreement or
done in pursuance of this Agreement shall constitute the parties' entering upon a joint
venture or partner-ship, or shall constitute either party the agent for the other party for
any purpose or in any sense whatsoever, or to create any fiduciary or any other extra
obligations.
7. Term and Termination
7.1 Term of Agreement. The term of this agreement varies depending
on the service plan selected by Merchant.
7.2 Termination Causes. TIAS.com may immediately terminate this
Agreement at any time, and without liability, upon the occurrence of any of the following
events (“TIAS.com Termination”):
- Customer’s failure to pay any overdue amount within ten days after written notice by TIAS.com
is given to Customer or
- Customer’s material breach or violation of any provision of this Agreement (other than
such violations set forth in clauses (3) and (4) below) that is not cured within ten
(10) days of Customer’s receipt of written notice from TIAS.com referencing such
breach or violation;
- Customer ceasing to do business in the normal course, becoming or being declared
insolvent or bankrupt, being the subject of any proceeding relating to liquidation or
insolvency which is not dismissed within ninety (90) calendar days, or making an
assignment for the benefit of its creditors; (iv) Customer’s violation of the AUP or the
Privacy Policy; or
- TIAS.com determines in its sole discretion that Customer continues to host
content that may subject TIAS.com to legal liability (in which case, TIAS.com
may terminate or modify the Products and Services to avoid such liability).
7.3 Effect of Termination. The termination of this Agreement by
either party shall not constitute or be deemed to constitute the waiver or release by such
party of any right or claim such party may have against the other party by reason of actions
or omissions occurring on or before the effective date of termination. TIAS.com may,
at any time within thirty (30) days after the date of termination, charge Merchant’s credit
card for any amounts described in Section 3 above. Merchant shall pay to TIAS.com all
amounts described in Section 3 above and payable for the period through the date of
termination within ten (10) days after the date of termination of this Agreement.
7.4 Survival. The rights and obligations of each party under
Sections and hereof will survive the expiration or any termination of this Agreement.
8. General Provisions
8.1 Notices. Any notice required to be sent by either party under
this Agreement may be sent by personal delivery, by registered or certified mail, postage
pre-paid, or by email, facsimile or other form of electronic transmission, to the respective
addresses or facsimile numbers of the parties, or to such other address which may hereinafter
be designated in writing. Any notice shall be deemed to have been delivered when served, if
personally served, three (3) business days after mailing, if mailed, and one (1) business day
after transmission, if sent by email, facsimile or other form of electronic transmission.
8.2 Breach and Revocation In the event that TIAS may at any time
believe that the Service is being utilized for unlawful purposes by the Customer or in
contravention of the terms and provisions of this Agreement, TIAS may unilaterally and
immediately discontinue such Service to the Customer without liability. Without limitation,
this provision will include obscene content, Bulk and Unsolicited Commercial Email (UCE),
failure to pay, failure to respond promptly to a customer on an order related-issue and
trademark or copyright infringement.
8.3 Security Interest in Customer's Data, Hosting Account and Domain
Name Registration The parties agree that this Agreement shall serve as a Security
Agreement. Customer agrees that TIAS and/or its subsidiaries shall have a security interest in
and the right in its sole discretion to suspend, cancel, transfer or modify Customer’s data,
web hosting account and domain name registration in the event that Customer fails to pay the
total amount when it is due or when Customer otherwise breaches this Agreement (including the
various policies identified herein as being incorporated by reference) and does not cure such
breach within five (5) days of oral or written notice by TIAS.
8.4 Default, Acceleration and Waiver of Notice Should Customer
otherwise breach this Agreement (including the Billing or Acceptable Use Policies), TIAS may,
after first giving Customer ten (10) days written notice (for purposes of this Agreement,
email addressed to the email address that Customer provides on its billing information
constitutes written notice), declare the Customer in default without any further notice.
Further, in the event of default, TIAS may act as Customer’s Attorney-in-Fact to execute any
actions or proceeding it deems appropriate in connection with this Agreement, including, but
not limited to, selling or otherwise disclosing Customer data and/or the domain name
registration.
8.5 Force Majuere. Neither party shall be deemed in default of this
Agreement to the extent that performance of its obligations or attempts to cure any breach are
delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots,
acts of government, shortage of materials or supplies, or any other cause beyond the
reasonable control of such party; provided, that the party interfered gives the other party
written notice thereof within ten (10) working days of any such event or occurrence.
8.6 No Waiver. The failure of either party to insist upon or enforce
strict performance by the other Party of any provision of this Agreement or to exercise any
right under this Agreement shall not be construed as a waiver or relinquishment to any extent
of such Party's right to assert or rely upon any such provision or right in that or any other
instance; rather the same shall be and remain in full force and effect.
8.7 Entire Agreement. This Agreement is the entire agreement, and
replaces any and all prior agreements of the parties for the services covered here. No change,
amendment or modification of any provision of this Agreement shall be valid unless in writing
signed by both parties.
8.8 Severability. In the event that any provision of this Agreement
conflicts with the law under which this Agreement is to be construed or if any such provision
is held invalid by a court with jurisdiction over the parties to this Agreement, such
provision shall be deemed to be restated to reflect as nearly as possible the original
intentions of the Parties in accordance with applicable law, and the remainder of this
Agreement shall remain in full force and effect.
8.9 Interpretation. Each party to this Agreement has been
represented by independent legal counsel. Therefore, the normal rule of construction that an
agreement shall be interpreted against the drafting party shall not apply. All pronouns and
any variation thereof shall be deemed to refer to the masculine, feminine, or neuter and to
the singular or plural as the identity of the person or persons may require for property
interpretation of this Agreement.
8.10 Applicable Law; Jurisdiction. This Agreement shall be
interpreted, construed and enforced in all respects in accordance with the laws of the State
of Delaware except for its conflicts of laws principles. Each party irrevocably consents to
the exclusive jurisdiction of the courts of the State of Delaware and the federal courts
situated in the State of Delaware, in connection with any action to enforce the provisions of
this Agreement, to recover damages or other relief for breach or default under this Agreement,
or otherwise arising under or by reason of this Agreement.
9. E-mail and Anti-Spamming Policy
9.1 Confirmed Opt-in. By accepting this agreement, Merchant agrees to
accept all emails from the support group or management of TIAS.com. Merchant agrees that such emails
are not bulk email but are, instead, part of the management process for Merchant's online store and do not constitute 'spam'.
Merchant will not report such mail as 'spam' to any entity.
9.2 Legal Compliance. Merchants must comply with all relevant
legislation and regulations on bulk and commercial e-mail, including the CAN-SPAM Act of 2003.
9.3 Mass Mailings. Merchants may not send mass unsolicited e-mail over the Internet, which
is email that is sent to recipients who have not Confirmed Opt-In or Closed-Loop Opt-In in to
mailings from the Merchant. All mass mailing must be sent using the TIAS.com mailing
system which records all consents and opt-ins, including the actual e-mail and its headers.
9.4 Mailing Lists. Merchants are prohibited from operating mailing lists
or mailing services that do not target an audience that has voluntarily signed up for e-mail
information using a Confirmed Opt-In or Closed-Loop Opt-In process or that has made their
e-mail addresses available to a User for distribution of information.
9.5 Other Prohibited Activities. Other prohibited activities
include, without limitation, the following:
- Reporting mailings to Merchant from the management or staff of TIAS.com as 'spam'
to any entity;
- Use of TIAS.com mailing services to transmit content that violates the TIAS.com
terms of service;
- Use of TIAS.com email addresses for the receipt of replies to unsolicited mass e-mail;
- Advertising any web page hosted at TIAS.com within “spam e-mail” sent from
another network (“spamvertising”);
- Hosting web page content or providing services that support spam.
If the Merchant uses TIAS.com
Services in a manner that causes TIAS.com to be “blacklisted” or blocked, TIAS.com
reserves the right to suspend permanently or terminate TIAS.com Services of such
Merchant. Operating TIAS.com mailing services on behalf of, or in connection
with, or reselling any service to persons or firms listed in the Spamhaus Register of Known
Spam Operations database at www.spamhaus.org shall constitute a violation of this Agreement.
9.6 Block Removal. If, as a result of a Merchant’s actions, TIAS.com’s
mail servers or IP address ranges are placed on black hole lists or other mail-filtering
software systems, TIAS.com shall charge Customer $120 upfront and $120 per hour
thereafter for any necessary remedial actions.
9.7 Liability / Termination. If any Merchant uses TIAS.com
Services in a manner that exposes TIAS.com to potential liability, as reasonably
determined by TIAS.com, TIAS.com may suspend permanently or terminate the
access to TIAS.com Services by such Merchant.
9.8 Remedial actions. The remedial actions set forth in this Agreement
shall not be construed in any way to limit the actions or remedies that TIAS.com may
take to enforce and ensure compliance with this Agreement. TIAS.com reserves the right
to recover any and all expenses, and apply any reasonable charges, in connection with a
Merchant’s violation of this Agreement. No refund or service credits will be issued for any
interruption in service resulting from violations of this Agreement. |
