ACCEPTANCE OF TERMS
Transcription Vendors provides a collection of online resources, including classified
ads, forums, and various email services, for transcription customers and Transcriptionists
(Buyer) doing transcription work (referred to hereafter as "the Service")
subject to the following Terms of Use ("TOU")
By using the Service in any way, you are agreeing to comply with the TOU. In addition,
when using particular Transcription Vendors services, you agree to abide by any
applicable posted guidelines for all Transcription Vendors services, which may change
from time to time.
Should you object to any term or condition of the TOU, any guidelines, or any subsequent
modifications thereto or become dissatisfied with Transcription Vendors in any way,
your only recourse is to immediately discontinue use of Transcription Vendors.
Transcription Vendors has the right, but is not obligated, to strictly enforce the
TOU through self-help, community moderation, active investigation, litigation and
prosecution.
2. MODIFICATIONS TO THIS AGREEMENT
We reserve the right, at our sole discretion, to change, modify or otherwise alter
these terms and conditions at any time. Such modifications shall become effective
immediately upon the posting thereof. You must review this agreement on a regular
basis to keep yourself apprised of any changes. You can find the most recent version
of the TOU at:
http://www.TranscriptionVendors.com/Termsofuse.aspx
Definitions
Unless the context clearly requires otherwise, the following terms used in this
Agreement shall be defined as follows:
1.1.
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"Agreement", "Service Provider", and "Buyer",
respectively, shall have the meanings defined herein above.
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1.2.
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"Services" shall mean and include the following:
- Transcription Services
- Transcribing Services
- Translation Services
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1.3.
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"Effective Date" shall mean the date first above set
forth in the preamble to this Agreement irrespective of the dates when each of the
individual parties have executed this Agreement.
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1.4.
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"Transcription Services" shall mean any transcribing
a recorded voice.
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1.5.
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"Translation Services" shall mean translation of any
document from one language to another.
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1.6.
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"Web Developer or Development" shall mean that the Buyer
shall receive a website business model developed by web developers based in the
United States or India predicated on data received from Buyer.
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1.7.
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"Buyer's Obligations" shall mean and include each and
every obligation, liability and payment due or payable to or in the future to become
due or payable to Seller pursuant to this Agreement and as further described in
Section 2.3 below. This shall include, but not be limited to the Buyer's duty to
cooperate with Service Provider.
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ARTICLE II
Purchase and Sale of Services
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2.1.
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Services. The Service Provider shall provide any and all services
as defined in Section 1.2 above to Buyer in accordance with the terms and conditions
of this Agreement.
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A.
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Start Date. The Service Provider shall commence the provision of
Services on the date of registration. ADVANCE \d 5
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B.
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Target Date. The Service Provider shall attempt to complete Services
by the date mentioned in TAT (turnaround time or "Target Date").
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2.2.
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Buyer's Obligations.
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A.
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Information Provided. The Buyer agrees to provide certain true,
current, complete and accurate information as required by the application process;
and maintain and update according to Service Provider's modification procedures
the information Buyer provided when purchasing.
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A.
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services as needed to keep it current, complete and accurate. Buyer further acknowledges
and agrees that each commitment, warranty, statement or undertaking of any kind
contracted in this Agreement is an enforceable obligation under the terms of this
Agreement, and that any and all failure shall constitute a breach of the terms of
this Agreement.
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B.
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Prohibited Uses.
- Buyer agrees that he/she will not work with any client that contacted through Transcription
Vendors website, either by email or phone, outside of the Transcription Vendors
Process.
- Buyer understands that Transcription Vendors has the right to remove any listing
without any need to explain its reasons.
- Buyer represents and warrants that all promotional means used by Buyer will not
contain objectionable content (including, but not limited to content that is misleading,
libelous, defamatory, obscene, violent, bigoted, hate-oriented, illegal, and/or
promoting illegal goods, services or activities), and that Buyer will not mislead
others. Buyer agrees to: (i) use ethical and legal business practices, (ii) comply
with the terms of this Agreement, and (iii) maintain a privacy policy on Buyer's
website. Buyer represents and warrants that Buyer will not engage in and/or facilitate
spamming, indiscriminate advertising or unsolicited commercial email or otherwise
fail to comply with the CAN SPAM Act of 2003 (Public Law 108-187 or any successor
legislation), and/or any other laws and/ or regulations that govern email marketing
and/or communications.
- Buyer represents and warrants that Buyer will not engage in pop-up or pop-under
advertising using any means involving third party properties and/or services (software).
Pop up/unders are acceptable on a first party basis only when triggered by Buyer's
site content /site visit or by downloadable software applications for which Buyer
is the owner/operator. Pop up/unders delivered through downloadable software cannot
engage in means that force clicks or perform redirects, or pop over a pay-per-click
listing or natural search results.
- Buyer shall not advertise his or her TV listing or profile on any pornographic or
adult content websites.
- Buyer must conspicuously post Buyer's privacy policy on its website and otherwise
make it available to all visitors. Buyer's privacy policy must comply with all laws
and regulations regarding the privacy of visitor information, be commercially reasonable,
and fully and accurately disclose Buyer's collection and use of visitor information.
- Buyer must fully and accurately disclose its use of third party technology, use
of cookies and options for discontinuing use of such cookies. Buyer shall only use
ethical and generally approved well advertising practices and will refrain from
any black-hat web marketing practices.
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2.3.
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Term and Termination. This Agreement shall be effective on the
date hereof and shall continue, unless terminated sooner, until the Target Date.
Service Provider will own the website upon termination of this contract. Either
Party may terminate this Agreement upon notice in writing if:
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A.
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The other is in breach of any material obligation contained in this Agreement, which
is not remedied (if the same is capable of being remedied) within 30 days of written
notice from the other Party so to do; or
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B.
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A voluntary arrangement is approved, a bankruptcy or an administration order is
made or a receiver or administrative receiver is appointed over any of the other
Party's assets or an undertaking or a resolution or petition to wind up the other
Party is passed or presented (other than for the purposes of amalgamation or reconstruction)
or any analogous procedure in the country of incorporation of either party or if
any circumstances arise which entitle the Court or a creditor to appoint a receiver,
administrative receiver or administrator or to present a winding-up petition or
make a winding-up order in respect of the other Party.
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C.
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Any termination of this Agreement (howsoever occasioned) shall not affect any accrued
rights or liabilities of either Party, nor shall it affect the coming into force
or the continuance in force of any provision hereof which is expressly or by implication
intended to come into or continue in force on or after such termination.
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D.
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If Buyer purchases services that are sold together as a "bundled" package
(e.g., Buyer selects a package that includes both a domain name and a website, as
opposed to its purchasing such services separately), termination of any part of
the services will result in termination of all services provided as part of the
bundled package. Buyer acknowledges and agrees that some or all of the services
Buyer purchases or receives from Service Provider may be provided by one or more
vendors, contractors or affiliates selected by Service Provider in its sole discretion.
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E.
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Effect of Termination. Except as otherwise expressly set forth herein, Service Provider
will cease charging Buyer's credit card, if applicable, for any monthly service
fees as of the expiration of the monthly billing cycle in which the termination
is effective. Unless otherwise specified in writing by Service Provider, Buyer will
not receive any refund for payments already made as of the date of termination,
and, Buyer may incur additional fees (in the case of a monthly or annual subscription
being paid over time). If termination of this Agreement is due to Buyer's default
hereunder, Buyer shall bear all costs of such termination, including any reasonable
costs Service Provider incurs in closing Buyer's account. Buyer agrees to pay any
and all costs incurred by Service Provider in enforcing Buyer's compliance with
this Section. Upon termination, Buyer shall destroy any copy of the materials licensed
to Buyer hereunder and referenced herein.
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ARTICLE III
Purchase Price: Determination and Payment
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3.1.
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Price.
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A.
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As consideration for the provision of Services by the Service Provider, the price,
as defined below, for the provision of Services is as follows:
Test Fee and Process:
- Free Listing – does not require
any listing fee. Only fee will be charged for using the platform to work for the
clients.
- General Transcriptionists members will take a test to see if they qualify to be a Transcriptionist for transcription vendors. A
new Transcriptionist
- Fills a form
- Test is emailed with info
- Transcriptionist submits the transcripts of the test
- Transcription Vendors approves/reject.
- If rejected – gets email
- If approved – gets documentation for signing and
sending and a link to register
- If rejected – there is no refund of the test fee.
Qualified (passed the test) Transcriptionist registration fees:
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B.
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General Registration
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i.
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Regular $250 registration fee + 10% of the revenue from the site as the service
fee for using the Transcription Vendor platform.
- The fee for transcription when their clients created by the Transcriptionist uploads
their files on the website will be the following or rate decided between the Transcriptionists'
client and the Transcriptionist.
Turn Around Time
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Up to 2 Speakers
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Multiple Speakers
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12 Hours
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$2.00
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$2.25
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RUSH (1-2 Days)
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$1.25
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1.50
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STANDARD (3-5 Days)
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$1.00
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1.25
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SPECIAL (1-2 Weeks)
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.95
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.95
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DISCOUNT (3-4 Weeks)
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.85
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.85
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- Transcriptionist will be responsible for getting the file uploaded on the site and
getting it downloaded after the transcription is completed.
- Transcriptionists will be responsible for collecting transcription fee from clients
who uploaded directly to the Transcriptionist created account. If a Transcriptionist's
client did not download the file after transcription, then Transcription Vendor
will be not responsible for collection of the transcription fee.
- Direct work from Transcription Vendors will paid on a project by project basis.
Transcriptionists will know the rate offered and will have the option to accept
or to not accept any project directly from Transcription Vendors.
- Transcriptionist will need to send a weekly report of clients received from the
website who did not get the processing done from the site, but was billed by the
Transcriptionist , and they will need to write a check for the 10% of the billed
amount.
- Transcription Vendors reserve the right for auditing Transcriptionists' accounts
to verify that the service fee was accurately calculated and offered to the Transcriptionist.
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Premium Membership
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ii.
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Premium ($1,500) + 10% of the revenue from the site as the service fee for using
Transcription Vendor platform and marketing -
- Can create login for clients where client can log
in and upload their files. These work will be charged at the below client rate,
or a rate mutually agreed upon between the client and the Transcriptionist.
Turn Around Time
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Up to 2 Speakers
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Multiple Speakers
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12 Hours
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$2.50
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2.75
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RUSH (1-2 Days)
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1.50
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1.75
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STANDARD (3-5 Days)
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1.25
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1.50
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SPECIAL (1-2 Weeks)
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1.10
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1.10
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DISCOUNT (3-4 Weeks)
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1.00
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1.00
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- Transcriptionist will be responsible for getting
the file uploaded on the site and getting it downloaded after the transcription
is completed.
- Transcriptionist will be responsible for collecting
transcription fee from clients who uploaded directly to the Transcriptionist created
account. If a Transcriptionists client did not download the file after transcription,
then Transcription Vendor will be not responsible for collection of the transcription
fee.
- Transcription Vendor will be responsible for paying
the lower rate to Transcriptionists for all work that Transcriptionists received
from Transcription Vendor directly.
- Transcriptionist will need to send a weekly report
of clients received from the website who did not get the processing done from the
site, but was billed by the Transcriptionist, and they will need to write a check
for the 10% of the billed amount.
- Transcription Vendors reserve the right for auditing
Transcriptionists accounts to verify that the service fee was accurately calculated
and offered to the Transcriptionist.
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(2) Upon sale of Buyer's product, Buyer will pay Service Provider Seven and One-half
Percent (10%) of sales.
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3.2.
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Payment.
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A.
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The Buyer agrees to pay the Price to the Service Provider on the following dates
as follows:
- The Full Feature Price shall be paid (check one):
- Test Fee: Single Payment on the Date of registration.
- Registration Fee: Annual Payment on the date of registration.
- Service Fee: 10% of sales in lieu of using Transcription Vendor
infrastructure and getting leads generated by Transcription Vendors.
- The Percent of Sales Price shall be paid as an automatic payment upon the date of
each sale on the Buyer's website to the Service Provider of Ten Percent (10%) of
the total amount of each sale.
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B.
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Any charges payable under this Agreement are exclusive of any applicable taxes,
tariff surcharges or other like amounts assessed by any governmental entity arising
as a result of the provision of the Services by Service Provider to the Buyer under
this Agreement and such shall be payable by the Buyer to the Service Provider in
addition to all other charges payable hereunder.
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ARTICLE IV
Other Covenants and Agreements
The parties hereto agree to the following additional terms and provisions as a material
part of this Agreement.
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4.1
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Ownership. Except as otherwise set forth herein, all right, title
and interest in and to all, (i) registered and unregistered trademarks, service
marks and logos; (ii) patents, patent applications, and patentable ideas, inventions,
and/or improvements; (iii) trade secrets, proprietary information, and know-how;
(iv) all divisions, continuations, reissues, renewals, and extensions thereof now
existing or hereafter filed, issued, or acquired; (v) registered and unregistered
copyrights including, without limitation, any forms, images, audiovisual displays,
text, software and (vi) all other intellectual property, proprietary rights or other
rights related to intangible property which are used, developed, comprising, embodied
in, or practiced in connection with any of the services identified herein are owned
by Service Provider or its licensors, and Buyer agrees to make no claim of interest
in or ownership of any such Service Provider's Intellectual Property Rights. Buyer
acknowledges that no title to the Service Provider's Intellectual Property Rights
is transferred to Buyer, and that Buyer does not obtain any rights, express or implied,
in the Service Provider or its licensors' service, other than the rights expressly
granted in this Agreement. To the extent that Buyer creates any Derivative Work
(any work that is based upon one or more preexisting versions of a work provided
to Buyer, such as an enhancement or modification, revision, translation, abridgement,
condensation, expansion, collection, compilation or any other form in which such
preexisting works may be recast, transformed or adapted) such Derivative Work shall
be owned by Service Provider and all right, title and interest in and to each such
Derivative Work shall automatically vest in Service Provider. Service Provider shall
have no obligation to grant Buyer any right in any such Derivative Work.
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4.2.
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Warranty. THE SERVICE PROVIDER REPRESENTS AND WARRANTS THAT IT
WILL PERFORM THE SERVICES WITH REASONABLE CARE AND SKILL AND THE SERVICES AND THE
MATERIALS PROVIDED BY THE SERVICE PROVIDER TO THE BUYER UNDER THIS AGREEMENT WILL
NOT INFRINGE OR VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OR OTHER RIGHT OF ANY THIRD
PARTY. BUYER AGREES THAT ITS USE OF OUR SERVICE(S) IS SOLELY AT BUYER'S OWN RISK.
BUYER AGREES THAT ALL OF SUCH SERVICES ARE PROVIDED ON AN "AS IS" AND
"AS AVAILABLE" BASIS, EXCEPT AS OTHERWISE NOTED IN THIS AGREEMENT. WE
EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING
BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE AND NON-INFRINGEMENT. NEITHER SERVICE PROVIDER, NOR ITS LICENSORS MAKE ANY
WARRANTY THAT SERVICE(S) LICENSED HEREUNDER WILL MEET BUYER'S REQUIREMENTS, OR THAT
THE SERVICE(S) WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES SERVICE
PROVIDER OR ITS LICENSORS MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED
FROM THE USE OF THE SERVICE(S) OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION
OBTAINED THROUGH THE SERVICES. BUYER UNDERSTANDS AND AGREES THAT ANY MATERIAL AND/OR
DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF OUR SERVICES IS DONE AT
BUYER'S DISCRETION AND RISK AND THAT BUYER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE
TO ITS COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL
AND/OR DATA. SERVICE PROVIDER MAKES NO WARRANTY REGARDING ANY GOODS OR SERVICES
PURCHASED OR OBTAINED THROUGH ANY OF ITS SERVICES OR ANY TRANSACTIONS ENTERED INTO
THROUGH SUCH SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED
BY BUYER FROM SERVICE PROVIDER OR THROUGH ITS SERVICES SHALL CREATE ANY WARRANTY
NOT EXPRESSLY MADE HEREIN. BUYER MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE.
TO THE EXTENT JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SOME
OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO BUYER. SERVICE PROVIDER IS NOT RESPONSIBLE
FOR AND SHALL HAVE NO LIABILITY WITH RESPECT TO ANY PRODUCTS AND/OR SERVICES PURCHASED
BY BUYER FROM A THIRD PARTY.
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4.3.
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Limitation of Liability. SUBJECT TO THE BUYER'S OBLIGATION TO PAY
THE PRICE TO THE SERVICE PROVIDER, EITHER PARTY'S LIABILITY IN CONTRACT, TORT OR
OTHERWISE (INCLUDING NEGLIGENCE) ARISING DIRECTLY OUT OF OR IN CONNECTION WITH THIS
AGREEMENT OR THE PERFORMANCE OR OBSERVANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT
AND EVERY APPLICABLE PART OF IT SHALL BE LIMITED IN AGGREGATE TO THE PRICE OR PRICES
PAID BY BUYER UNDER THE TERMS OF THIS AGREEMENT. TO THE EXTENT IT IS LAWFUL TO EXCLUDE
THE FOLLOWING HEADS OF LOSS AND SUBJECT TO THE BUYER'S OBLIGATION TO PAY THE PRICE,
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOSS OF PROFITS, GOODWILL, LOSS
OF BUSINESS, LOSS OF DATA OR ANY OTHER INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE
WHATSOEVER. NOTHING IN THIS CLAUSE 4.3 WILL SERVE TO LIMIT OR EXCLUDE EITHER PARTY'S
LIABILITY FOR DEATH OR PERSONAL INJURY ARISING FROM ITS OWN NEGLIGENCE.
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4.4.
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Indemnity. Buyer agrees to release, indemnify, defend and hold
harmless Service Provider and any of its contractors, agents, employees, officers,
directors, shareholders, affiliates and assigns from all liabilities, claims, damages,
costs and expenses, including reasonable attorneys' fees and expenses, relating
to or arising out of (a) this Agreement or the breach of Buyer's warranties, representations
and obligations under this Agreement, (b) the Service Provider's services or Buyer's
use of such services, including without limitation infringement or dilution by Buyer,
or someone else using Service Provider's service(s) from Buyer's computer, (c) any
intellectual property or other proprietary right of any person or entity, (d) a
violation of any of Service Provider's operating rules or policies relating to the
service(s) provided, (e) any information or data Buyer supplied to Service Provider,
including, without limitation, any misrepresentation in Buyer's application, if
applicable, (f) the inclusion of meta-tags or other elements in any website created
for Buyer or by Buyer via Service Provider's services, or (g) any information, material,
or services available on Buyer's licensed Service Provider's website . When Service
Provider is threatened with suit or sued by a third party, Service Provider may
seek written assurances from Buyer concerning its promise to indemnify Service Provider;
Buyer's failure to provide those assurances may be considered by Service Provider
to be a material breach of this Agreement. Service Provider shall have the right
to participate in any defense by Buyer of a third-party claim related to Buyer's
use of any of the Service Provider's services, with counsel of Service Provider's
choice at its own expense. We shall reasonably cooperate in the defense at Buyer's
request and expense. Buyer shall have sole responsibility to defend Service Provider
against any claim, but Buyer must receive Service Provider's prior written consent
regarding any related settlement. The terms of this paragraph will survive any termination
or cancellation of this Agreement.
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4.5.
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Representations and Warranties. Buyer agrees and warrants that:
(i) neither Buyer's registration nor use of any of the services, nor the manner
in which Buyer intends to use such services, will directly or indirectly infringe
the legal rights of a third party, (ii) Buyer has all requisite power and authority
to execute this Agreement and to perform its obligations hereunder, (iii) Buyer
is of legal age to enter into this Agreement; and (iv) Buyer agrees to comply with
all applicable laws and regulations.
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4.6.
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Severability. Buyer agrees that the terms of this Agreement are
severable. If any term or provision is declared invalid or unenforceable, in whole
or in part, that term or provision will not affect the remainder of this Agreement;
this Agreement will be deemed amended to the extent necessary to make this Agreement
enforceable, valid and, to the maximum extent possible consistent with applicable
law, consistent with the original intentions of the parties; and the remaining terms
and provisions will remain in full force and effect.
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4.7.
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Entire Agreement. Buyer agrees that this Agreement, the rules and
policies incorporated by reference in this Agreement are the entire, complete and
exclusive agreement between Buyer and Service Provider regarding Service Provider's
services and supersede all prior agreements and understandings, whether written
or oral, or whether established by custom, practice, policy or precedent, with respect
to the subject matter of this Agreement, including, without limitation, any purchase
order provided by Buyer for the services.
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4.8.
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Governing Law. TThe Parties agree that this Agreement and any disputes
hereunder shall be governed in all respects by and construed in accordance with
the laws of the State of California United States of America.
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4.9.
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Waiver. No waiver of any provision of this Agreement shall be effective
unless it is in writing and signed by an authorized representative of Service Provider.
The remedies of Service Provider under this Agreement shall be cumulative and not
alternative, and the election of one remedy for a breach shall not preclude pursuit
of other remedies. The failure of a party, at any time or from time to time, to
require performance of any obligations of the other party hereunder shall not affect
its right to enforce any provision of this Agreement at a subsequent time, and the
waiver of any rights arising out of any breach shall not be construed as a waiver
of any rights arising out of any prior or subsequent breach.
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4.10.
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Independent Parties. Neither party nor their employees, consultants,
contractors or agents are agents, employees or joint ventures of the other party,
and they do not have any authority to bind the other party by contract or otherwise
to any obligation. Each party shall ensure that the foregoing persons shall not
represent to the contrary, either expressly, implicitly, by appearance or otherwise.
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4.11.
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Force Majeure. Neither party shall be deemed in default hereunder,
nor shall it hold the other party responsible for, any cessation, interruption or
delay in the performance of its obligations hereunder due to causes beyond its control
including, but not limited to: earthquake; flood; fire; storm; natural disaster;
act of God; war; terrorism; armed conflict; labor strike; lockout; boycott; supplier
failures, shortages, breaches, or delays; or any law, order regulation, direction,
action or request of the government, including any federal, state and local governments
having or claiming jurisdiction over Service Provider, or of any department, agency,
commission, bureau, corporation or other instrumentality of any federal, state,
or local government, or of any civil or military authority; or any other cause or
circumstance, whether of a similar or dissimilar nature to the foregoing, beyond
the reasonable control of the affected party, provided that the party relying upon
this section (i) shall have given the other party written notice thereof promptly
and, in any event, within five (5) days of discovery thereof and (ii) shall take
all steps reasonably necessary under the circumstances to mitigate the effects of
the force majeure event upon which such notice is based; provided further, that
in the event a force majeure event described in this Section extends for a period
in excess of thirty (30) days in the aggregate, Service Provider may immediately
terminate this Agreement.
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4.12.
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Headings. The section headings appearing in this Agreement are
inserted only as a matter of convenience and in no way define, limit, construe or
describe the scope or extent of such section or in any way affect such section.
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4.13.
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Confidentiality. Neither Party will use, copy, adapt, alter or
part with possession of any information of the other which is disclosed or otherwise
comes into its possession under or in relation to this Agreement and which is of
a confidential nature. This obligation will not apply to information which the recipient
can prove was in its possession at the date it was received or obtained or which
the recipient obtains from some other person with good legal title to it or which
is in or comes into the public domain otherwise than through the default or negligence
of the recipient or which is independently developed by or for the recipient.
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4.14.
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Non-solicitation: Neither party shall solicit employment from any
of the other party's employees whose work relates to this Agreement, during the
term of this Agreement and for a period of six months after termination of this
Agreement, without the prior written consent of the other party.
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4.15.
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Notices. Any notice which may be given by a Party under this Agreement
shall be deemed to have been duly delivered if delivered by hand, first class post,
facsimile transmission or electronic mail to the address of the other Party as specified
in this Agreement or any other address notified in writing to the other Party. Subject
to any applicable local law provisions to the contrary, any such communication shall
be deemed to have been made to the other Party, if delivered by:
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A.
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First class post, 2 days from the date of posting;
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B.
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Hand or by facsimile transmission, on the date of such delivery or transmission;
and
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C.
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Electronic mail, when the Party sending such communication receives confirmation
of such delivery by electronic mail.
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4.16.
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EXCLUSIVE REMEDY; TIME LIMITATION ON FILING ANY CLAIM.BUYER AGREES
THAT SERVICE PROVIDER'S ENTIRE LIABILITY, AND BUYER'S EXCLUSIVE REMEDY, IN LAW,
IN EQUITY, OR OTHERWISE, WITH RESPECT TO ANY SERVICE(S) PROVIDED UNDER THIS AGREEMENT
AND/OR FOR ANY BREACH OF THIS AGREEMENT IS SOLELY LIMITED TO THE AMOUNT BUYER PAID
FOR SUCH SERVICE(S) DURING THE TERM OF THIS AGREEMENT. IN NO EVENT SHALL SERVICE
PROVIDER, ITS LICENSORS AND CONTRACTORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL,
SPECIAL OR CONSEQUENTIAL DAMAGES EVEN IF SERVICE PROVIDER HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT THAT A STATE DOES NOT PERMIT THE EXCLUSION
OR LIMITATION OF LIABILITY AS SET FORTH HEREIN SERVICE PROVIDER'S LIABILITY IS LIMITED
TO THE EXTENT PERMITTED BY LAW IN SUCH STATES. Service Provider and its licensors
and contractors disclaim any and all loss or liability resulting from, but not limited
to: (1) loss or liability resulting from access delays or access interruptions;
(2) loss or liability resulting from data non-delivery or data mis-delivery; (3)
loss or liability resulting from acts of God; (4) loss or liability resulting from
the unauthorized use or misuse of Buyer's account number, password or security authentication
option; (5) loss or liability resulting from errors, omissions, or misstatements
in any and all information or service(s) provided under this agreement; (6) loss
or liability relating to the deletion of or failure to store e-mail messages; and
(7) loss or liability resulting from the development or interruption of Buyer's
website. BUYER AGREES THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY
CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OF OUR
SERVICES MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE
OR SUCH CLAIM SHALL BE FOREVER BARRED.
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4.17.
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Marketing Materials. All Marketing materials are to be construed
consistently with the terms of this Agreement. Marketing materials shall be subordinate
to the terms of this Agreement. Any and all marketing materials that are inconsistent
with the terms of this Agreement shall be deemed null and void.
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4.18.
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Miscellaneous. The failure of either party to enforce its rights
under this Agreement at any time for any period shall not be construed as a waiver
of such rights. If any part, term or provision of this Agreement is held to be illegal
or unenforceable neither the validity or enforceability of the remainder of this
Agreement shall be affected. Neither Party shall assign or transfer all or any part
of its rights under this Agreement without the consent of the other Party. This
Agreement may not be amended for any other reason without the prior written agreement
of both Parties. This Agreement constitutes the entire understanding between the
Parties relating to the subject matter hereof unless any representation or warranty
made about this Agreement was made fraudulently and, save as may be expressly referred
to or referenced herein, supersedes all prior representations, writings, negotiations
or understandings with respect hereto. Neither Party shall be liable for failure
to perform or delay in performing any obligation under this Agreement if the failure
or delay is caused by any circumstances beyond its reasonable control, including
but not limited to acts of god, war, civil commotion or industrial dispute. If such
delay or failure continues for at least 7 days, the Party not affected by such delay
or failure shall be entitled to terminate this Agreement by notice in writing to
the other.
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