This Agreement ("Agreement") is between Advanced Media Productions, Inc., a Massachusetts corporation ("Advanced Media Productions") with an office at 251 West Central Street, Natick, Massachusetts 01760 and the party specified in the order form annexed hereto and incorporated herein by reference ("Order"). Such party shall be referred to herein as the "Customer" and shall enter into this Agreement by signing below.
For good and valuable consideration, the parties agree as follows:
Subject to the terms and conditions of this Agreement, Advanced Media Productions will provide to Customer the Web hosting and/or related services described in the plan selected by Customer from Advanced Media Productions' then published list of services offered from time to time ("Services"). The specific plan of Services to be provided initially to Customer shall be as selected in the Service Order and thereafter as established through correspondence between Customer and Advanced Media Productions.
The initial term of this Agreement shall be as stated in the Service Order ("Initial Term"). The Initial Term shall begin upon commencement of Service to Customer, provided, however, no Service shall commence unless and until Advanced Media Productions receives and accepts a completed Service Order from Customer, plus payment in full for Services to be rendered during the Initial Term and any setup charges. Advanced Media Productions reserves the right to reject any submitted Service Order for any or no reason prior to written acceptance thereof by Advanced Media Productions. After the Initial Term, unless otherwise agreed to by the parties, this Agreement shall automatically renew for successive terms of equal length as the Initial Term unless terminated or canceled by either party only as provided in Paragraph 9 below. The Initial Term plus all successive renewal periods during which Service is provided shall be collectively referred to as the "Term".
All fees for Services rendered or provided to Customer shall be in accordance with Advanced Media Productions' fee schedule then in effect, the terms of which are incorporated herein by reference. A fee schedule setting forth Advanced Media Productions' current rates for Services is annexed to the Service Order. Advanced Media Productions may, with 30 days notice to Customer, amend the Services and/or the rates and fees it charges for the Services. Fees for renewal periods after the Initial Term shall be due and owing immediately upon the first day of such renewal period. Customer will receive an invoice for the charges for the basic Services rendered or provided by Advanced Media Productions for such renewal period, plus any additional Services rendered or provided by Advanced Media Productions to Customer for the preceding month of the Term, and any other charges or fees then due hereunder. Payment in full of such invoiced amount is due within 30 days of receipt of the invoice. Should payment in full of any invoice not be received by Advanced Media Productions within thirty (30) days after date of invoice, Advanced Media Productions may impose a debt service charge equal to one and one-half percent (1.5%) of the overdue balance (or such lesser amount as may be required by law) for each month or fraction thereof the overdue amount remains unpaid. In addition, in the event that any amount due Advanced Media Productions remains unpaid thirty (30) days after presentation of an invoice to Customer, Advanced Media Productions, in its sole discretion, may immediately terminate this Agreement, and/or withhold or suspend Services. All taxes, fees and governmental charges relating to the Services provided hereunder (other than income taxes of Advanced Media Productions) shall be paid by Customer.
Customer agrees that neither Advanced Media Productions nor its suppliers shall, under any circumstances, be held responsible or liable for situations where the data stored or communicated through the Service are accessed by third parties through illegal or illicit means, including situations where such data is accessed through the exploitation of security gaps, weaknesses or flaws (whether known or unknown to Advanced Media Productions at the time) which may exist in the Service. Advanced Media Productions stores and facilitates the transmission of private electronic communications pursuant to the Electronic Communications Privacy Act of 1986. 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, or used without the consent of at least one of the parties to the communication. Although Advanced Media Productions will not systematically monitor the content which is submitted to, stored on or distributed via disseminated via the Service, Advanced Media Productions reserves the right, in its sole discretion, to edit or delete any information or other content, regardless of whether it violates the standards for content laid out in the Advanced Media Productions, Inc. Usage Policy found at http://www.advmediaproductions.com/hosting.html ("Usage Policy").
Customer agrees to use all Advanced Media Productions' Services and facilities, and any information obtained through or from Advanced Media Productions at Customer's own risk. Customer acknowledges and understands that neither Advanced Media Productions, nor any of its employees, representatives, agents or the like, warrant that the Services offered or provided hereunder will not be interrupted or be error free, nor do they make any warranty or representation as to the results that may be obtained from the use of the Service or as to the accuracy, reliability or content of any information service or merchandise contained in or provided through the Service, unless otherwise expressly stated in this Agreement. Advanced Media Productions specifically disclaims all warranties of any kind, including, without limitation, the warranty of merchantability and fitness for a particular purpose, whether expressed or implied, for the Service it is offering or providing hereunder.
Customer warrants that all information submitted to, stored or distributed via the Service does not infringe copyright or any other intellectual property right. Customer grants Advanced Media Productions the right to reproduce, copy use and distribute any materials submitted to, stored on or distributed via the Service to the extent needed to operate the Service. Customer agrees that its use of the Service and the software used to provide the Service will be in a manner consistent with this Agreement. Customer shall not use, nor permit the use by any person of, the Service or any part thereof, including any hyperlinks, in violation of the Usage Policy.
Under no circumstances, including negligence, shall Advanced Media Productions, its officers, agents or anyone else involved in creating, producing or distributing the Service hereunder be liable to Customer or any third party, for any claims, causes of action or direct, indirect, incidental, special, or consequential, trebled, or punitive damages, that result or have alleged to have resulted from the use of or inability to use the Service; or that results from mistakes, omissions, interruptions, deletion of files, loss of data, errors, defects, delays in operations, or transmission or any failure of performance, whether or not limited to acts of God, communications failure, theft, destruction or unauthorized access to Advanced Media Productions' records, programs or services. Advanced Media Productions further shall have no responsibility whatsoever to Customer or any third party for the accuracy or quality of information obtained through or in connection with its Services provided hereunder. Notwithstanding the above, Customer's exclusive remedies for all damages, losses, costs or causes of actions from any and all claims, whether in contract, quasi-contract, statutory, tort including negligence, or otherwise, shall not exceed the aggregate dollar amount which Customer paid during the twelve (12) months immediately preceding the claim or the term of this Agreement, whichever is less.
CUSTOMER AGREES TO INDEMNIFY AND HOLD HARMLESS ADVANCED MEDIA PRODUCTIONS AND ITS SUPPLIERS 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 IN CONNECTION WITH: (1) THE USE OF THE SERVICE BY THE CUSTOMER OR ANY USER OR (2) ANY ACTS OR OMISSIONS OF THE CUSTOMER OR AUTHORIZED USERS. THIS INDEMNIFICATION INCLUDES ANY CAUSE OF ACTION BROUGHT AGAINST ADVANCED MEDIA PRODUCTIONS WHICH IS BASED IN WHOLE OR IN PART ON A CLAIM THAT ADVANCED MEDIA PRODUCTIONS IS NEGLIGENT IN RELATION TO PROVISION OF THE SERVICE TO THE CUSTOMER OR USER(S). CUSTOMER'S OBLIGATION TO INDEMNIFY ADVANCED MEDIA PRODUCTIONS AND ITS SUPPLIERS WILL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT BY EITHER PARTY FOR ANY REASON. CUSTOMER SHALL PAY FOR THE DEFENSE OF ANY SUCH THIRD PARTY ACTION ARISING AS DESCRIBED HEREIN UNLESS ADVANCED MEDIA PRODUCTIONS AND CUSTOMER MUTUALLY AGREE THAT ADVANCED MEDIA PRODUCTIONS WILL PAY FOR THE DEFENSE.
This Agreement may be terminated: (i) by either party, without cause, by giving the other party 30 days prior written notice; (ii) by Advanced Media Productions, at any time, upon 20 days' prior notice if in the sole judgment of Advanced Media Productions, Customer breaches any material provision of this Agreement and has not cured same by the end of the 20 days; (iii) by Advanced Media Productions in the event of nonpayment by Customer as provided in Paragraph 3 above; and (iv) by Advanced Media Productions, at any time, without notice, if, in Advanced Media Productions' sole judgment, Customer is in violation of any terms or conditions of Advanced Media Productions' Usage Policy.
Customer hereby acknowledges that it has received and reviewed a copy of Advanced Media Productions' "Usage Policy" provided herewith and that the terms of the Usage Policy are incorporated herein by reference. Advanced Media Productions reserves the right to amend the Usage Policy from time to time and Customer shall be bound by any such amendments. Customer shall have the obligation to periodically visit Advanced Media Productions' Web site to review its Usage Policy and to make certain Customer is in full compliance therewith. In the event of any inconsistencies between this Agreement and the Usage Policy, the terms of the Usage Policy shall govern.
Each of Advanced Media Productions' hosting plans carries a 30-day unconditional money back guarantee. If Customer is not completely satisfied with Advanced Media Productions' services provided, hereunder within the first 30 days of the Initial Term, Customer will be given a full refund of any amounts paid to Advanced Media Productions hereunder excluding setup fees (unless canceled prior to activation), domain registration fees and overages. No refund is available after the 30th day of the Initial Term.
All notices must be sent either in writing or by email, except as otherwise expressly provided herein that a notice must be in writing. All notices to Advanced Media Productions shall be delivered to its address stated above or its email address as provided. All notices to the Customer shall be delivered to its mailing address or its email address as provided on the Service Order. The parties may change their respective address by notice delivered to the other party. All notices delivered in writing must be sent either by overnight courier or certified mail, return receipt requested. Evidence of successful transmission of all notices delivered by email must be retained by the delivering party.
This Agreement sets forth the entire agreement between Advanced Media Productions and Customer with respect to the subject matter hereof and supersedes all previous representations, understandings or agreements and shall prevail notwithstanding any variance with terms and conditions of any other prior writing between the parties. If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions shall nevertheless continue in full force and effect. Customer may not transfer or assign this Agreement without Advanced Media Productions' prior written consent. This Agreement shall be governed by the laws of the State Massachusetts and all claims concerning this Agreement shall be brought exclusively in the state or federal courts located in the County and State Massachusetts. The parties hereby consent to submit to the jurisdiction of such courts and waive any personal jurisdiction or venue defenses concerning said forum. If not for personal use, Customer hereby represents and warrants to Advanced Media Productions that the he or she is duly authorized to execute and deliver this Agreement on behalf of the legal entity to whom the benefit of the service is being conferred, and that such entity will comply with and be bound by the terms and conditions of this Agreement.
Advanced Media Productions
251 West Central Street
Suite 28
Natick, Massachusetts 01760
Copyright © 1999 - 2010 Advanced Media Productions, Inc.
Advanced Media Productions | 251 West Central Street | Natick, Massachusetts 01760
Toll Free: 1-888-755-5151Email:info@advmediaproductions.com
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