Important Notice: This Agreement sets forth the terms and conditions upon which Advanced Media Productions, Inc. shall provide and the Customer obtains the use of Advanced Media Productions' Services. Unless otherwise expressly stated in the Service Order(s), the Terms and Conditions attached hereto shall govern the Agreement between the Parties. Unless otherwise agreed to by the parties, this Agreement shall apply to all Advanced Media Productions' Services provided by Advanced Media Productions, Inc. to the Customer as requested from time to time and as are described and agreed to in the Service Order(s) signed by the parties. Each Service Order signed by the parties shall apply for the Term as set out therein.
Advanced Media Productions, Inc. hereby represents and warrants to the Customer that the individual executing this Agreement is duly authorized to execute and deliver this Agreement on behalf of Advanced Media Productions, Inc., and that Advanced Media Productions, Inc. will comply with and be bound by the terms and conditions of this Agreement as if a signatory hereto. Likewise, the Customer hereby represents and warrants to Advanced Media Productions, Inc. that the individual executing this Agreement is duly authorized to execute and deliver this Agreement on behalf of the Customer and that the customer will comply with and be bound by the terms and conditions of this Agreement as if a signatory hereto.
IN WITNESS WHEREOF, Advanced Media Productions, Inc. and the Customer have duly executed this Agreement as of this ____ day, _______________ 2001.
Advanced Media Productions, Inc. Customer
By: __________________________
By: __________________________
Name: ________________________
Name: ________________________
Title: _________________________
Title: _________________________
Date: _________________________
Date: _________________________
This agreement is between ADVANCED MEDIA PRODUCTIONS, INC. (the 'Service Provider') a Massachusetts corporation with an office at 251 West Central Street, Natick, and; the Customer, as identified in the Service Order(s) to this Agreement.
'Agreement' or 'Advanced Media Productions Services Agreement' shall mean Advanced Media Productions' Service Terms and Conditions and all terms and conditions set out in service order(s) attached hereto ('Service Order'), which are hereby incorporated into the Agreement by reference.
'Advanced Media Productions' Services' shall mean the managed electronic data and mail transmission services to be provided by the Service Provider or the Customer as further described in the Service Order(s) of this Agreement.
'Content or Applications' shall mean the Customer's database(s), HTML documents, applications or other forms of content provided by the Customer to be hosted on, distributed, or made available to Users via the Advanced Media Productions' Services, as further described in the Service Order(s).
'Users' shall mean (i) those companies and individuals authorized by the Customer to utilize the Advanced Media Productions' Services to communicate and/or replicate, and (ii) those companies and individuals able or authorized to access the Content or Applications via the Advanced Media Productions' Services.
'Term' shall mean the term described in the Service Order(s).
'Parties' shall mean the Service Provider and the Customer; 'Party' shall mean either the Service Provider or the Customer, as the context requires.
These Terms and Conditions set forth the terms and conditions upon which the Service Provider shall provide and the Customer shall obtain the use of Advanced Media Productions' Services and shall govern the Agreement between the Parties. Unless otherwise agreed to by the parties, this Agreement shall apply to all Advanced Media Productions' Services provided by the Service Provider to the Customer as requested from time to time and as are described in the Service Order(s).
3.1 Any services provided hereunder shall be provided to the Customer for the Term set out in the Service Order describing the service. Subject only to Sections 3.2 and 3.3 below, this Agreement shall continue in force for such Term(s).
3.2 Either party may, at its option, terminate any Service Order by written notice to the other forthwith in any of the following events:
3.2.1 If the other Party breaches any of its material obligations hereunder and does not remedy the same (it is capable of remedy) within thirty (30) days of notice of such failure or breach being given by the non-defaulting party, or such longer period as may be required to correct such breach it, within said thirty (30) days, the defaulting party shall commence the correction of such breach and thereafter diligently pursue the correction thereof;
3.2.2 If an order is made or an effective resolution is passed for the dissolution or winding up of the other Party except for the purposes of an amalgamation, merger or reconstruction; reason for termination, provided the Service Provider does not cure or remedy this condition within one (1) month.
3.2.3 If an encumbrancer takes possession or a receiver is appointed over all or substantially all of the assets of the other:
3.2.4 If the other becomes insolvent or makes any special arrangements or any special assignment for the benefit of its creditors; or
3.2.5 Upon the failure of the other party to make a payment hereunder within 90 days after written notice that such payment is past due.
3.3 Unless Term renewal is explicitly addressed in the Service Order, at the expiration of the Term of the Service Order, such Service Order shall automatically renew for a period of the same length as the first Term unless, at least 30 days prior to such renewal, either Party provides written notice to the other of its intention not to renew that Service Order.
3.4 Should any Service Order expire or be terminated for any reason, neither Party will be liable to the other because of such 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 the business of the Service Provider or the Customer or for any other reason whatsoever flowing from such termination or expiration. Termination or expiration of any Service Order shall not release either party from its liability to pay the other party any fees owing to such other party under the terms of this Agreement.
3.5 Upon termination or expiration of any Service Order:
3.5.1 the Service Provider will immediately return to the Customer any of the Customer's data related to that Service Order that is stored on Service Provider's system;
3.5.2 the Customer shall (i) return to the Service Provider all copies of source code, executable program files, documentation, and flowcharts diagrams, and related materials provided by the Service Provider to the Customer pursuant to the Service Order (hereinafter the Software), including any copies of computer programs on magnetic media and any written materials, and (ii) delete from all computer systems all copies of the Software; and
3.5.3 the Customer shall turn over to Service Provider all modem(s), hardware, or accessories (herein 'Equipment'), documents, and materials which were provided to the Customer by the Service Provider pursuant to the Service Order, unless otherwise expressly agreed by the Parties. and the Customer agrees to reimburse the Service Provider for any damage, which has been sustained by the Equipment, while in the Customer's possession.
3.6 The Service Provider may make or permit reasonable changes in the Advanced Media Productions Services provided under this Agreement. All discoveries, improvements, adaptations, or developments relating to Advanced Media Productions' Services provided by the Service Provider under this Agreement are and shall remain the exclusive property of the Service Provider. It the Service Provider makes a change which has a material adverse effect on the Customer's operations, the Customer may cancel this Agreement after written notice which states with particularity the reason for termination, provided the Service provider does not cure or remedy this condition within one (1) month.
4.1 The Service Provider shall charge the Customer for the Advanced Media Productions' Services in accordance with the prices set forth in the Service Order(s).
4.2 The Customer shall be financially responsible for any and all use of the Advanced Media Productions' Services by the Customers employees and Users.
4.3 The Customer shall pay or reimburse the Service Provider for sales, and value added taxes, where applicable, and any other governmental taxes, charges and duties levied, imposed or assessed for the Advanced Media Productions' Services or arising out of services rendered to the Customer under this Agreement, excluding, however, ordinary personal property taxes, taxes based upon the Service Providers net income, and corporate franchise taxes. The Service Provider shall furnish the Customer with invoices showing the amounts due under this Section.
4.4 All monetary values set forth in this Agreement are in US Dollars unless otherwise clearly stated.
4.5 Terms of payment on all charges are net thirty (30) days in US Dollars.
4.6 Failure to pay by the Customer according to the terms of this Agreement shall entitle the Service Provider, without prejudice to its other rights and remedies under this Agreement, to:
4.6.1 charge interest on a daily basis from the original due date at the rate of 1.5 percent per month and/or,
4.6.2 suspend the provision of Advanced Media Productions' Services, following twenty-one (21) days written notice, provided that the Customer has not remedied its default within that time.
4.7 The Customer will reimburse the Service Provider for all reasonable costs incurred by the Service Provider in collecting past due amounts. Such costs may include, but are not limited to, wire transfer fees, collection agency fees, reasonable attorney fees, and court costs.
4.8 The Customer acknowledges that the Service Provider relies upon some vendor-supplied licenses to provide the Advanced Media Production' Services. Moreover, the Customer recognizes that such vendors may have the ability to alter the terms of such licenses so as to make the provision of Advanced Media Productions' Services by the Service Provider commercially unreasonable. Should any third party licenses upon which the Service Provider relies to provide the Advanced Media Productions' Services to the Customer materially change during the Term of a Service Order, the Service Provider may notify the Customer of such change and provide the Customer with a corresponding change in the description of service and pricing for each affected Service Order ('Licensing Change Notice'). If the Customer wishes to continue purchasing Advanced Media Productions' Services under such altered description of service and pricing or it the Customer fails to respond to the Licensing Change Notice within 10 days, such Service Order will be deemed to be amended to reflect the new description or service and pricing and shall continue, uninterrupted, pursuant to the Term of that Service Order. If the Customer does not wish to purchase the Advanced Media Productions' Services as so described and priced and the Customer provides 10 days written notice to the Service Provider of its decision not to do so, then the Service Order shall automatically terminate on the eleventh day following the Licensing Change Notice.
4.9 Customer acknowledges that, in order to make use of the Advanced Media Productions' Services, it may need to procure certain software licenses. Hardware and other items not provided by Advanced Media Productions as part of the Advanced Media Productions' Services. Customer shall be solely financially responsible for any and all costs associated with such items.
5.1 The Service Provider shall implement reasonable security procedures to protect the Customer's computer data and transmissions via the Advanced Media Productions' Services from unauthorized access. If the Service Provider adheres to such reasonable security procedures, as the same may be revised from time to time, there shall be a conclusive irrebuttable presumption that the Service Provider has satisfied the foregoing obligation.
5.2 The Customer is responsible to the accuracy, adequacy and security of computer equipment, programs and data it furnishes or transmits, for use of the output it obtains, for maintaining procedures external to the Advanced Media Productions' Services for reconstruction or lost data or programs, and for satisfying its requirements for accuracy of system output.
5.3 The Parties agree that the Service Provider shall not, under any circumstances, be held responsible or liable for situations where the security, stability, or availability of the Customers Advanced Media Productions Services is compromised by the Customer directly, by software or programs provided to the Service Provider by the Customer, or by actions the Service Provider undertakes at the request of the Customer.
5.4 The parties agree that the Service Provider shall not, under any circumstances, be held responsible or liable for situations where data or transmissions are accessed by third parties through illegal or illicit means, including situations where the data or transmissions are accessed through the exploitation of security gaps, weaknesses or flaws (whether known or unknown to the Service Provider at the time) which may exist in any software, including software or programs provided to the Service Provider by the Customer and any other software utilized by the Customer in connection with the Advanced Media Productions' Services, beyond the exclusive control of the Service Provider.
5.5 The Service Provider may provide the Customer with Equipment or Software to be used by the Customer in accessing Advanced Media Productions' Services. The Customer shall properly use the Equipment or Software provided by the Service Provider, and the Customer will provide facilities and security the proper operation and maintenance of, and will not alter, move, connect, or disconnect this Equipment or Software without first calling and obtaining oral approval from the Service Provider. The Customer shall be solely liable for any loss or damage to the Equipment or Software caused by the negligence or willful acts of the Customer or its officers, employees, agents, or contracts, or for loss or damage of the Equipment or Software through theft or vandalism on the Customer's premises. Moreover, in the event of any alteration, movement, connection or disconnection of or any other tampering or adjustments to the Equipment or Software by the Customer without the prior express approval of the Service Provider, the Service Provider shall be completely released from any liability or obligation (including any warranty or indemnity obligation) to the Customer arising from or relating to the Equipment or Software that was affected by such action of the Customer, and the Customer shall be liable to the Service Provider for costs or damages incurred by the Service Provider.
5.6 The Service Provider shall not be responsible for the installation, operation, or maintenance of equipment or software not provided by the Service Provider; nor shall the Service Provider be responsible for the transmission or reception of information by equipment or software not provided by the Service Provider.
5.6.1 The Customer shall be responsible for the use and compatibility of equipment or software not provided by the Service Provider. In the event that the Customer uses equipment, software, or supplies not provided by the Service Provider which impairs its use of the Advanced Media Productions' Services, the Customer shall nonetheless be liable for payment for the Advanced Media Productions' Services or maintenance needed as a result of equipment failure or performance problems caused by the Customer's use of equipment, software, or supplies not provided by the Service Provider. Upon notice from the Service Provider that the equipment or software not provided by the Service Provider is causing or is likely to cause hazard or interference, the Customer shall eliminate the likelihood of hazard or interference.
5.6.2 The Service Provider shall not be responsible if changes in any of the Service Provider's facilities, operations, procedures, or Advanced Media Productions' Services causes equipment or software not provided by the Service Provider to become obsolete, require modification or alteration, or otherwise affect the performance of equipment or software not provided by the Service Provider.
5.7 The Customer agrees that its use of the Advanced Media Productions' Services will be in a manner consistent with this Agreement and with all applicable laws and regulations, including without limitation, copyright, trademark, and export control laws prohibiting the use of telecommunications facilities to transmit illegal, obscene, threatening, harassing, or other offensive messages. The Customer acknowledges that the Service Provider is not responsible for any use or misuse of Advanced Media Productions' Services by the Customer or its Users. In particular, the Customer shall not, nor shall it permit or assist others, to abuse or fraudulently use the Advanced Media Productions' Services, including but not limited to the following:
5.7.1 to obtain or attempt to obtain Advanced Media Productions' Services by any fraudulent means or device with intent to-avoid payments;
5.7.2 to access, alter, or destroy any information of another customer of the Service Provider by any fraudulent means or device, or attempt to do so;
5.7.3 to use Advanced Media Productions' Services so as to interfere with the use of the Advanced Media Productions' Services by other customers or users;
5.7.4 to post, disseminate, or otherwise transmit copyrighted materials via the Advanced Media Productions' Services without the permission of the owner(s) or person(s) they specifically authorize. Copying, redistributing, or publication must be with the express permission of the owners of such copyrighted materials; or
5.7.5 to use Advanced Media Productions' Services to send unsolicited advertising or promotional material (including unsolicited e-mail) to any third party, including subscribers and users of Advanced Media Productions' Services or to solicit third parties, including subscribers or users of the Advanced Media Productions' Services to become members of other competitive information or communication services. The Customer agrees that Service Provider may, in its sole discretion, take steps to limit a third party's ability to send messages (including advertising or promotional materials) to third parties, including subscribers or users of the Advanced Media Productions' Services, and may do so with or without notice to the Customer.
5.8 The Service Provider stores and facilitates the transmission of private electronic communications pursuant to the Electronic Communications Privacy Act of 1986 (18 U.S.C. 2510, et. seq.). Electronic communications on this system are private, and only under situations where explicitly required or allowed by law will such communications be accessed, intercepted, disclosed, used without the consent of at least one of the parties to the communication. The Service Provider agrees that in the event that it is required by any court or government order or applicable law to disclose the contents of data. The Service Provider will provide the Customer with advance notice of any such disclosure to the extent practicable. Although Service Provider will not systematically monitor the content which is disseminated via the Advanced Media Productions' Services, the Service Provider reserves the right to (a) edit or delete any information, software, or other content which it determines in its sole discretion (such discretion to be exercised in good faith) to be illegal, obscene, threatening, harassing, or otherwise offensive, and (b) edit or delete any other information, software, or other content, under justified exigent circumstances, as such circumstances are determined in good faith by Service Provider, regardless of whether it violates the standards for content laid out in section 5.7.
Except as otherwise expressly stated in the Service Order(s), the Service Provider warrants it will use reasonable care in providing Advanced Media Productions' Services under this Agreement. Except for maintenance and periods of shut-down caused by equipment, system or power failure, or other causes beyond the reasonable control of the Service Provider. Specifically including periods of shut-down caused by software or programs provided to the Service Provider by the Customer, the system will be operational twenty-four (24) hours a day, seven (7) days a week.
7.1 The Service Provider represents that all rights in all intellectual property, including Software, provided by the Service Provider to the Customer in relation to the Advanced Media Productions' Services, if any, are either licensed to or the property of the Service Provider and that the Service Provider has the right to permit the Customer to use such intellectual property rights in accordance with this Agreement. Nothing contained herein shall be deemed to convey title or ownership interest in such intellectual property to the Customer. The Customer agrees that neither the Customers nor its employees or Users will, directly or indirectly, (i) sell, lease, assign, sublicense, or otherwise transfer: (ii) duplicate, reproduce, or copy (except to make one backup copy), (iii) disclose, divulge, or otherwise make available to any third party, (iv) use except as authorized under this Agreement or (v) decompile, disassemble or otherwise analyze or reverse engineering purposes the Software including all trade secrets and confidential information therein.
7.2 Neither party shall use the other party s name or refer to the other in any press release advertising or marketing literature without the prior written approval of the other except that both parties may disclose to third parties that they are doing business with the other under this Agreement.
7.3 The Customer grants to the Service Provider non-exclusive non-transferable worldwide licenses during the term of this Agreement to copy and otherwise deal with the Customer's Content or Applications to the full extent reasonably required for the Service Provider to fulfill its obligations to the Customer under this Agreement and to manage the Advanced Media Productions' Services (the 'License'). The License herein granted does not in any way affect the ownership of the Customer's Content or Applications.
7.4 The Customer represents and warrants that it is authorized to grant the License set out in the preceding section that the Content or Applications do not infringe any copyright or other proprietary right of third parties and that the Service Provider's exercise of such License will not infringe any copyright or other proprietary or license right of any third party.
The Service Provider and the Customer acknowledge that they will receive confidential information and trade secrets ('Confidential Information') from each other in connection with this Agreement. Confidential information shall be deemed to include all the information each Party receives from the other Party except anything designated as not confidential. The Service Provider and the Customer agree to maintain the secrecy of the Confidential Information and agree neither to use it (except for the purposes of performing hereunder) nor to disclose it to anyone outside the Service Provider and the Customer or to anyone within the Service Provider and the Customer who does not have a need to know it in order to perform under this Agreement. Items will not be considered to be Confidential Information if (i) available to the public other than by a breach of an agreement with the disclosing party; (ii) rightfully received from a third party not in breach of any obligation of confidentiality; (iii) independently developed by one party without access to the Confidential Information of the other; (iv) known to the recipient at the time of disclosure; or (v) produced in compliance with applicable law or a court order provided that other party is given reasonable notice of such law or order and an opportunity to attempt to preclude or limit such production.
9.1 EXCEPT AS OTHERWISE EXPRESSLY STATED IN THE AGREEMENT THE SERVICE PROVIDER MAKES NO EXPRESS OR IMPLIED WARRANTY WITH RESPECT TO THE PROGRAMS OR GOODS OR SERVICES TO BE SUPPLIED TO THE CUSTOMER INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE ADVANCED MEDIA PRODUCTIONS' SERVICES ARE PERFORMED AND DISTRIBUTED ON AN 'AS IS' BASIS.
9.2 IN THE EVENT THAT DATA FURNISHED BY THE CUSTOMER OR ANY CLIENT. WHETHER TRANSMITTED VIA ADVANCED MEDIA PRODUCTIONS' SERVICES OR OTHERWISE, IS LOST OR DESTROYED OR DAMAGED BY THE SERVICE PROVIDER, THE SERVICE PROVIDER'S AGENTS OR EMPLOYEES, THE CUSTOMER'S SOLE REMEDY SHALL BE THE REPAIR OR REPLACEMENT BY THE SERVICE PROVIDER OF SUCH LOST, DESTROYED OR DAMAGED DATA, PROVIDED HOWEVER THAT SUCH REPAIR OR RESTORATION CAN REASONABLY BE PERFORMED BY THE SERVICE PROVIDER AND PROVIDED, FURTHER, THAT THE CUSTOMER FURNISHES THE SERVICE PROVIDER WITH ALL SOURCE DATA, IN MACHINE READABLE FORM, NECESSARY FOR SUCH REPAIR OR RESTORATION.
9.3 THE PARTIES ACKNOWLEDGE THAT, SEPARATE AND DISTINCT FROM ADVANCED MEDIA PRODUCTIONS' SERVICES, THERE EXIST MATERIALS POSTED OR ORIGINATED BY THIRD PARTIES AND SUBSEQUENTLY ARCHIVED VIA ADVANCED MEDIA PRODUCTIONS' SERVICES, WHICH MAY BE DISPLAYED, DUPLICATED, DISTRIBUTED, OR, MADE AVAILABLE THROUGH ADVANCED MEDIA PRODUCTIONS' SERVICES (THE 'THIRD PARTY CONTENT'). THE SERVICE PROVIDER MAKES NO WARRANTY WHATSOEVER REGARDING THE THIRD PARTY CONTENT, AND UNDER NO CIRCUMSTANCES WILL THE SERVICE PROVIDER BE LIABLE FOR, OR WILL ANY INDEMNIFICATION RIGHTS ARISE, OUT OF OR IN CONNECTION WITH SUCH THIRD PARTY CONTENT. THIS DISCLAIMER OF WARRANTY SPECIFICALLY RELATES TO WHETHER OR NOT THE THIRD PARTY CONTENT DOES OR WILL INFRINGE ANY TRADEMARK. SERVICE MARK, COPYRIGHT, RIGHT TO PUBLICITY, RIGHT OF PRIVACY, OR OTHER INTELLECTUAL PROPERTY RIGHT OF A THIRD PARTY, CONSTITUTE FALSE. DECEPTIVE, OR UNFAIR ADVERTISING OR DISPARAGEMENT UNDER APPLICABLE LAW. OR FAIL TO COMPLY WITH APPLICABLE LAWS AND REGULATIONS (INCLUDING, FOR EXAMPLE, LICENSING REQUIREMENTS AND ADMINISTRATIVE OR PROFESSIONAL RULES).
9.4 THE SERVICE PROVIDER, INCLUDING ITS OFFICERS EMPLOYEES, AGENTS, AND DIRECTORS, SHALL NOT HAVE ANY LIABILITY OF ANY KIND, DIRECT OR INDIRECT, TO THE CUSTOMER FOR ANY DAMAGES OTHER THAN ACTUAL DAMAGES DIRECTLY AND PROXIMATELY RESULTING FROM THE FAILURE, DELAY, OR NONPERFORMANCE OF ADVANCED MEDIA PRODUCTIONS' SERVICES. THE MAXIMUM LIABILITY OF THE SERVICE PROVIDER FOR SUCH DAMAGES SHALL BE LIMITED SOLELY TO THE AMOUNT PAID BY THE CUSTOMER TO THE SERVICE PROVIDER FOR ADVANCED MEDIA PRODUCTIONS' SERVICES DURING SUCH PERIOD OF FAILURE, DELAY, OR NONPERFORMANCE. THE LIABILITY, IF ANY, OF THE SERVICE PROVIDER, INCLUDING ITS OFFICERS, EMPLOYEES, AGENTS, AND DIRECTORS, INCLUDING BUT NOT LIMITED TO LIABILITY ARISING OUT OF CONTRACT, TORT, BREACH OF WARRANTY, INFRINGEMENT OR OTHERWISE, SHALL NOT IN ANY EVENT INCLUDE LIABILITY FOR LOSS OF PROFITS, LOSS OR INACCURACY OF DATA, OR INDIRECT. SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.1 The Service Provider shall indemnify and hold harmless the Customer, its directors, officers, and employees from and against any and all third-party claims and resulting liabilities, losses, damages, costs and expenses, (including reasonable attorneys fees) or whatever nature or kind arising out of or incidental to or in any way resulting from the illegal, malicious, or grossly negligent acts or omissions of the Service Provider to the Service Provider's officers, employees (while acting within the scope of their employment), or agents acting in their performance of this Agreement.
10.2 The Service Provider shall (i) defend, at its expense, and pay any costs and damages finally awarded against the Customer in any action brought against the Customer to the extent that it is based on a claim as set forth in Section 10.1, and (ii) reimburse the Customer for attorneys' fees and other costs reasonably incurred in connection with such an action. The obligations set out in this Section 10.2 shall only apply provided that the Customer:
10.2.1 notifies the Service Provider promptly in writing of any such claim;
10.2.2 allows the Service Provider to fully control the defense of any such claim; and
10.2.3 does not agree to any settlement of any such claim without the Service Provider's consent.
10.3 The Customer shall indemnity and hold harmless the Service Provider, its directors, officers, and employees from and against any and all third-party claims and resulting liabilities, losses, damages, costs and expenses, (including reasonable attorneys fees) of whatever nature or kind arising out of or incidental to or in any way resulting from the acts or omissions of the Customer or the Customer's officers, employees (while acting within the scope of their employment), or agents and any third-party claim brought against the Service Provider based on the Service Provider's acts or omissions related to the provision of the Advanced Media Productions' Services to the Customer unless such acts are adjudged to be illegal, malicious, or grossly negligent. THIS INDEMNITY SHALL INCLUDE CLAIMS BROUGHT BY THIRD PARTIES ALLEGING THAT THE SERVICE PROVIDER IS SOLELY NEGLIGENT IN THE PROVISION OF THE ADVANCED MEDIA PRODUCTIONS' SERVICES TO THE CUSTOMER.
10.4 The Customer shall (i) defend, at its expense, and pay any costs and damages finally awarded against the Service Provider in any action brought against the Service Provider to the extent that it is based on a claim as set forth in Section 10.3, and (ii) reimburse the Service Provider for attorneys fees and other costs reasonably incurred in connection with such an action. The obligations set out in this section 10.4 shall only apply provided that the Service Provider:
10.4.1 notifies the Customer promptly in writing of any such claim;
10.4.2 allows the Customer to fully control the defense of any such claim; and
10.4.3 does not agree to any settlement of any such claim without the Customer's consent.
11.1 Force Majeure. No delay or default in performance of any obligation by either party, excepting all obligations to make payments hereunder, shall constitute a breach of this Agreement to the extent caused by force majeure.
11.2 Assignments and Subcontracts. This Agreement may not be assigned, sublicensed or otherwise transferred by either party, whether by operation of law or otherwise, without the others prior written consent, except that either party may assign this Agreement upon notice to other in instances in which such assignment is to an entity which acquires all or substantially all of the business of that party, whether by merger, consolidation, or acquisition of assets. Provided further that such assignee is not directly or indirectly controlled by a competitor of the remaining original Party.
11.3 Entirety of Agreement. This Agreement constitutes the entire agreement of the Parties and supersedes all previous and contemporaneous communications, representations, or agreements with respect to the subject matter hereof, with the exception of any previously entered into Advanced Media Productions, Inc. Confidentiality Agreement ('Confidentiality Agreement'), which will continue in effect throughout the terms of this Agreement. To the extent that there is a conflict between the language of this Agreement and the Confidentiality Agreement, this Agreement will govern.
11.4 Applicable Law. This Agreement and all matters regarding the interpretation and/or enforcement hereof, shall be governed exclusively by the law of the State of Massachusetts, without reference to its conflicts of law rules, except in so far as the federal law of the United States of America may control any aspect of this Agreement, in which case federal law shall govern such aspect.
11.5 Arbitration. If a dispute arises out of (or relates to) this Agreement, or the breach thereof, the Parties agree to submit said dispute to binding arbitration held in Boston, Massachusetts and administered by the American Arbitration Association, in accordance with it guidelines and rules, and the parties further agree that any judgment or award rendered by said arbitrators may be entered in any court having jurisdiction thereof.
11.6 No Agency. The Service Provider will, in all matters relating to this Agreement, act as an independent contractor. Neither is an agent, legal representative, partner, joint venture, franchisee, employee, or servant of the other for any purpose. Neither Party will represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other party, or to represent the other party in any capacity. Unless otherwise noted, both parties shall be responsible for all expenses incurred by them in the course of exercising any rights or responsibilities accepted by them under this Agreement.
11.7 No Third Party Beneficiary. Any agreements contained, expressed, or implied in this Agreement shall be only for the benefit of the Parties and their respective legal representatives, successors and assigns, and such agreements shall not inure to the benefit of the obligees of any indebtedness of either Party, it being the intention of the Parties that no person or entity shall be deemed a third party beneficiary of this Agreement.
11.8 Severability. It any provision of this Agreement is held to be unenforceable, the parties shall substitute for the affected provision an enforceable provision which approximates the intent and economic affect of the affected provision.
11.9 Modifications. This Agreement shall not be modified, interpreted, supplemented or amended or in any way revised or altered, except by an instrument in writing signed by duly authorized representatives of the Parties hereto.
11.10 No Waiver. No failure or delay of either Party hereto in exercising any right, power, or privilege hereunder (and no course of dealing between the Parties) shall operate as a waiver of any such right, power, or privilege. No waiver of any default on any one occasion shall constitute a waiver of any subsequent default. No single or partial exercise of any such right, power, or privilege shall preclude the further or full exercise
11.11 Signatures. This Agreement may be signed in any number of counterparts with the same effect as if the signatures thereon and hereon were upon the same instrument. Subject to the other provisions hereof, this Agreement shall not become effective until copies hereof that, when taken together, bear the signatures of each Party hereto have been received by each of such Parties.
11.12 Surviving Provisions. The Intellectual Property Rights Confidentiality, Exemptions and Limitations of Liability, Indemnification, Applicable Law, and Arbitration Sections shall survive termination of this Agreement.
11.13 Notices. All notifications under this Agreement shall be sent to the contact persons at either their address or fax number as set out above in this Advanced Media Productions Services Terms and Conditions.
11.14 Non-Exclusivity. Nothing in this Agreement shall be read to prevent the Service Provider from entering into similar arrangements with other entities, including, without limitation, other information, content, or applications providers, from providing other services via the Advanced Media Productions' Services or otherwise, or from offering information services that exclude the Content or Applications.
11.15 Non-Solicitation. The Service Provider and the Customer agree to retrain from soliciting for employment, without the prior written consent of the other, their respective employees during the term of this Agreement, and for a period of one (1) year following the termination of this Agreement.
11.16 Section Headings. Section headings are for reference purposes only and shall not affect the interpretation on meaning of this Agreement.
11.17 Conflicting Provisions. In the case of a conflict between a provision in these Terms and Conditions and a provision in an executed Service Order, such conflicting provision of the Service Order shall prevail over the conflicting provision in these Terms and Conditions with regard to that Service Order.
Copyright © 1999 - 2008 Advanced Media Productions, Inc.
Advanced Media Productions | 251 West Central Street | Natick, Massachusetts 01760
Tel: (508) 647-5151 | Toll Free: (888) 755-5151 | Fax: (508) 647-5150 | Email:info@advmediaproductions.com
