IMPORTANT READ CAREFULLY:
Any use of Media Site Builder software and services that is covered by this License Agreement ("LA") is not permitted unless you click on the "Accept" button. Clicking on the "Accept" button and using the Software or the services offered by TRAFFIC MEDIA (“TM”) indicates that you are authorized to bind yourself, your employer, your clients, or related users (you and/or each of them, the " Licensee"), as the case may be, in contract and that the Licensee accepts the LA terms.
The LA is a legal agreement between the Licensee (either an individual or a single entity) and TM regarding the use of the software and services, which includes computer software and may include associated media, printed materials, and "online" or electronic documentation ("SOFTWARE PRODUCT"). It will govern the use of the Software & Services as well as any new features that will be added to them including the release of new products, unless otherwise specified.
By registering, log in, copying, or otherwise using the SOFTWARE & SERVICES, you acknowledge that you have read this LA, that you understand it, and that you and the Licensee accept and agree to be bound by its terms and you are authorized to bind Licensee by them. If you do not agree to the terms of this LA, do not use the SOFTWARE & SERVICES and/or the SOFTWARE PRODUCT.
ATTENTION: THIS IS A LICENSE, NOT A SALE. THIS PRODUCT IS PROVIDED UNDER THE FOLLOWING LICENSE WHICH DEFINES WHAT YOU MAY DO WITH THE PRODUCT AND CONTAINS LIMITATIONS ON WARRANTIES AND/OR REMEDIES. THIS LICENSE IS GRANTED BY TRAFFIC MEDIA.
1.1. Subject to the compliance by Licensee with the provisions of this LA, TM and subject to the terms, conditions and restrictions set forth in this LA, TM hereby grants Licensee, during the term of this LA, a non-exclusive license: (i) to provide services of internet websites building for Customers (the “TM Websites”), all in accordance with the provisions of this LA. (ii) to distribute the Software (in object code form only) to and the Services to its customers, including other distributors and resellers (the “Customers”); (iii) to grant sublicenses to Customers for use of the Software subject to the provisions of this LA; and (iv) to display and demonstrate the Software to prospective customers for the purpose of marketing the Software and the Services to such prospective customers (the "License").
1.2. All Customers to which you and/or Licensee provides the Services must agree in writing to a “Customer License Agreement” in connection with the Services which: (i) must be entered into in writing by and between Licensee and those Customers; (ii) must be consistent with the rights and restrictions hereunder; and (iii) must include the requirements indicated hereto.
1.3. The Services will be provided to the Customers directly by Licensee. Licensee will be responsible for handling all communication and support for all Customers in connection with the Services. This will include without limitation all matters relating to the collection of the graphic design and content from the Customers, designing of the TM Websites, instructing and training the Customers how to operate the TM Websites, etc.
1.4. The TM Websites shall be installed and hosted exclusively on TM's servers, all in accordance with TM's instructions and policies, including but not limited to TM’s anti-spam, and privacy policies, as shall be in effect from time to time.
1.5. The License is limited for the use of the software & services and/or the software products and/or any part or element thereof (including but not limited to any graphics, photos, skin or design) only within the TM websites under this LA. Any other use (i.e. preparing banners) is prohibited.
2. Representations and warranties
2.1. By accepting this LA, log in, or by using the Media Site Builder, you hereby represent and warrant to us that:
2.1.1. You represent that you are of legal age to form a binding contract and are not barred from receiving services under the laws of the applicable jurisdiction.
2.1.2. the statements that you made in connection with such registration, use or maintenance, are complete and accurate and you shall maintain and update the Registration Data to keep it true and complete;
2.1.3. every thing you make is being done so in good faith;
2.1.4. to your knowledge, the domain name and the website content will not infringe upon or otherwise violate or conflict with the rights of any third party or third party’s registration, trademark or trade name;
2.1.5. you are not building the website for an unlawful purpose; and
2.1.6. You will not knowingly build a website that will be used in violation of any applicable laws or regulations.
2.2. You agree and acknowledge that it is your responsibility to determine whether a website infringes or violates someone else's rights and you assume full responsibility for providing end-users and viewers of your Website with any required disclosure or explanation of the various features of the your Website and any goods or services described therein, as well as any rules, terms or conditions of use.
2.3. YOU ACKNOWLEDGE THAT ALL SOFTWARE & SERVICES ARE PROVIDED TO YOU "AS IS" AND WITH ALL FAULTS. TM MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS LA OR THE SERVICES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, UNLESS SUCH REPRESENTATIONS AND WARRANTIES ARE NOT LEGALLY EXCLUDABLE. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF TM E-MAIL FORWARDING OR OTHER EMAIL SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
3. Licensee’s Responsibilities.
3.1. You hereby agrees that you will not, and will not allow any third party to: (a) modify, port, translate, localize or create derivative works of the Software (b) decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques or algorithms of the Software by any means whatsoever, or disclose any of the foregoing; (c) encumber or suffer to exist any lien or security interest on the Software; or (d) take any action that would cause the Software's code or products to be placed in the public domain.
3.2. The sale of the Software and/or the Services by Licensee to Customers, shall be on terms and conditions that shall hold TM harmless from and against any and all claims of such Customers. Licensee shall use its best efforts to protect all Confidential Information, IP Rights (as such terms are defined below) and other proprietary rights related to TM, the Documentation and the Software and shall use its best efforts which shall in any event not be less than commercially reasonable efforts to ensure that its Customers comply with such provisions. Licensee shall notify TM of any breach of obligation under any of Licensee’s applicable distribution and/or reseller agreements or of any end-user agreement of which Licensee becomes aware, and will cooperate with TM in any legal action to prevent or stop unauthorized use, reproduction or distribution of the Software and/or the Services.
3.3. Licensee shall obtain and maintain all necessary permits and approvals as may be required to import, market, distribute, sell, install, maintain and supply the Software and the Services. For avoidance of doubt, all other costs related to such permits and approvals shall be borne by Licensee. Without derogating from the above, Licensee shall exercise all measures in order to prevent any infringement of any copyright or other intellectual property rights, including in connection with any content or design of any TM Website for any Customer (the "Customer Materials").
3.4. Licensee shall not make any representations concerning the Software and/or the Services other than those representations contained in promotional and sales material provided to it by TM, or otherwise approved in advance and in writing by TM for this purpose. Licensee shall be solely responsible for any representations made by it that are not contained in such material that was provided by TM, or approved by it in advance.
3.5. Licensee shall use reasonable commercial efforts to enforce each Customer License Agreement with at least the same degree of diligence used in enforcing similar agreements, and shall notify TM of any breach of obligation under any such Customer License Agreements of which Licensee becomes aware, and will cooperate with TM in any legal action to prevent or stop unauthorized use, reproduction or distribution of the Software and/or the Services.
3.6. You represent that you and/or Licensee are not prevented or barred, in any way, from entering this Agreement and its performance thereof shall not conflict or cause the breach of any agreement, undertaking or law to which it is subject or bound.
3.7. You acknowledge that damages may not be a sufficient remedy for TM in the event of breach of the LA or any other agreement, and that in certain circumstances TM may petition the competent courts for an injunction in order to protect its rights with respect to the Services.
4. Your account
4.1. The first time you receive a license according to this LA, you will be asked to select a User name and password. That User name and password are the means through which you access to certain of the Services. Please keep the User name and password you select from any unauthorized use. You acknowledge and agree that in no event will TM be liable for the unauthorized use or misuse of your User name or password. Where an entity sign up to use the Software & Services using a pre-selected login information (i.e. User and Password pair), that entity is granted to control and manage the account thereafter. You are responsible for maintaining and updating all login IDs, passwords, and for all access to and use of your account by you or any third party.
4.2. The Software enables, inter alia, the opening of a profile card on which the Customer's or end-user's (as applicable) details may be inserted (the “Customer Card”). Once a Customer Card is opened, for any reason whatsoever, the Licensee shall be deemed to have activated the license that shall be deemed active (the “Active License”).
4.3. Each Active License shall entitle the Licensee during the term hereof to build an unlimited number of TM Websites; provided, however, that no more than one TM Website shall be activated simultaneously per Customer Card (i.e. in the framework of an Active License the Licensee shall be entitled to “reset”, at its sole discretion and responsibility, the details of a certain Customer Card and re-insert new data into such Customer Card (e.g. details of a new Customer or end-user).
5.1. All information, data, text, messages, links, music sound, photographs, graphics, video, messages or other materials ("Content"), loaded to the Website created by licencee (the "Website"), are at licensee sole responsibility.
5.2. Licensee is entirely responsible for all Content that is uploaded, posted or transmitted to or made available in the Website
5.3. Licensee shall be fully responsible for supplementing, modifying and updating the Website.
5.4. Licensee hereby grant TM with a non-exclusive, royalty-free, worldwide right and license during the term of this LA to do the following to the extent necessary in the performance of Services: (a) digitize, convert, install, upload, select, order, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit, distribute, publish, publicly display and publicly perform the Content; and (b) make archival or back-up copies of the Content and the Website.
5.5. Except for the rights expressly granted above, TM is not acquiring any right, title or interest in or to the Content, does not control the Content in the Website, does not claim ownership on the Content on the Website and, as such, does not guarantee the accuracy, integrity or quality of such Content.
5.6. Licensee is entirely responsible of backing up and saving the Content and TM has no responsibility whatsoever to the uploading, saving, backing or lack thereof of the Content on the Website.
5.7. Under no circumstances will TM be liable in any way for any Content or for any loss or damage of any kind to the Content or that is incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Services.
5.8. TM reserves the right to edit or remove Content that it becomes aware of and determines to be unlawful, harmful, offensive or otherwise in violation of the LA. TM may also remove Content that contains third-party commercial advertisements, is inaccurate or includes unauthorized disclosure or personal information. Violation of these restrictions ("Restrictions") may also result in the termination or suspension of your access abilities to the Website or you License. These Restrictions apply to all content provided to or through the Services, including email messages, newsgroup postings, chat, and personal or business web pages.
5.9. Licensee shall not post or store on the Website any Content that violates or infringes anyone's intellectual property rights or that is obscene, harm minors in any way, includes child pornography, defamatory, racist, libelous, excessively violent, harassing, or otherwise objectionable.
5.10.Licensee shall not use the Services in any way for uploading, posting, emailing transmitting or otherwise making available any unsolicited or unauthorized advertising, promotional material, junk mail, chain letters, spam or any other form of solicitation except as specifically authorized by the Documentation and under the limitations of the Software.
5.11.Licensee shall not use any Website on the TM's server as a pseudonymous return email address for any communications that you transmit from another location or through another service; and you may not pretend to be someone else when using the Services.
5.12.Licensee shall not upload, post or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.
5.13.Licensee shall not use the Services for any unlawful activities not otherwise covered above. Additionally, you shall not use the Services to: (i) intentionally or unintentionally violate any applicable local, state, national or international law, or any regulations having the force of law; (ii) impersonate any person or entity, including, but not limited to, a TM official, or falsely state or otherwise misrepresent its affiliation with a person or entity; (iii) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Services or develop hidden pages or images; (iv) upload, post or otherwise transmit any Content that does not have a right to transmit to the public under any law or under contractual or fiduciary relationships;
5.14.TM does not pre-screen Content, however, TM and its designees have the right (but not the obligation) in their sole discretion to block or restrict access to or the availability of, or to disable, any Content that is available via the Services. Without limiting the foregoing, TM and its designees may disable, restrict access to or the availability of, any Content that violates the LA or is otherwise objectionable. You shall evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.
5.15.Licensee acknowledge, consent and agree that TM may access, preserve and disclose your Website and License information and Content if required to do so under any applicable law or if it believes such discloser is necessary to enforce the LA and/or respond to claims that the Content violates the rights of a third party and/or to protect the rights, property or safety of TM, its users and the public.
5.16.Unless otherwise explicitly stated, herein, any Content provided by you in connection with the Website shall be deemed to be provided on a nonproprietary and non-confidential basis. You acknowledge that you are responsible for the Content that is submitted, and shall have full responsibility for the Content, including its legality, reliability, appropriateness, originality and copyright.
6.1. "Images" shall mean animations, clipart, composites, digital footage, digital video, film footage, fonts, graphics, illustrations, images, motion sequences, photographs or any other visual representation regardless of whether the Image(s) are obtained via download from the Website, delivered via any storage media (CD, DVD, disk, etc.) that is now known or may become known in the future, or obtained from TM together with all accompanying metadata and other material.
6.2. The Images are copyrighted and protected under the various laws of. The Images shall remain the sole and exclusive property of TM, or its licensors. Use of the Images is licensed, not sold, pursuant to the terms of this Agreement. Use of the Images without agreeing to this Agreement, or a breach of these Agreement terms, is copyright infringement.
6.3. Use of the Images and/or any derivative work using them shall be done only within the TM Websites.
6.4. You undertake not to:
6.4.1. Sublicense, distribute, transfer or assign the Images or rights to the Images.
6.4.2. Reverse engineer, decompile, translate, or disassemble any part of the Images.
6.4.3. Use the Images Copy or reproduce them apart from the use of Software and within the TM Website.
6.4.4. Use the Images in any downloadable format intended for multiple distribution including, without limitation, templates, Web site templates, software products, e-greetings, etc.
6.4.5. Remove any copyright, trademark or watermark from any place where it appears on the Images; or Use the Images, or any part of the Images, as part of a trademark, service mark, or logo. TM or its licensors retain the full rights to the Images, and therefore you cannot establish your own rights.
6.4.6. Use the Images to compete with TM in the business of licensing images to customers.
6.4.7. Use the Images in any way that could be considered defamatory, pornographic, libelous, immoral, obscene or fraudulent, or illegal, either by making physical changes to it, in the juxtaposition to accompanying text or images, or otherwise.
6.4.8. Use the Images beyond any limitations or restrictions set forth in this Agreement.
6.5. TM reserves the right to forbid use of any Images for any reason whatsoever and/or notify that certain Images are no longer available for use. Upon such notification, the license to use them shall automatically and immediately be terminated.
6.6. TM reserves the right to replace Images with an alternative Image for any reason. Upon notice of such replacement, the license for the replaced Images immediately, and automatically, terminates for any use of the Images that does not already exist, and this Agreement shall automatically apply to any replacement Images. You agree not to use any replaced Images with future products or services and you shall take all reasonable steps to discontinue use of the replaced Images in existing.
6.7. Upon termination of the license to use any Images granted under this LA, you agree to destroy all copies and archives of the Images and to cease using them for any purpose.
6.8. You are solely responsible for determining whether your use of any Images requires the consent of any other party or the license of any additional rights. If you are unsure whether additional rights are needed for your use of the Images, you are responsible for consulting with competent legal counsel; and If you are acting as an agent, you must inform your client/principal of the terms of this Agreement.
6.9. All provisions of this agreement will apply also to the use of Images.
7.1. TM has the right to establish rules and practices (the "Rules") concerning the Hosting Services of the Websites, including procedures regarding sending emails, uploading Content, email sizes, Website sizes, disk space that may be allotted on its servers on your behalf and access privileges to the Website, and has the right to modify these Rules from time to time.
7.2. TM has the right to log off, disactivate or close any TM Website that has expired. 3 months after the expiration TM has the right to delete the Website or use it for any purpose whatsoever.
7.3. Any unauthorized reproduction, publication and distribution of materials provided on the Services, is forbidden.
7.4. You acknowledge that the Services may include security components that permit digital material to be protected. You shall not attempt to override or circumvent any of such security components.
7.5. For the removal of doubt it is clarified that the Media Site Builder is suited for building small websites with no more than several tens of pages.
7.6. You will not use storage space in excess of the storage limits established for the Services as decided by TM. If you use storage space in excess of such amounts, TM may, without limiting its other rights or remedies, assess you with additional fees or limit your usage.
7.7. If your actual bandwidth usage in any month exceeds the limit set out in the Rules, you will pay TM such additional fees as may be specified in the Rules or limit your usage.
7.8. TM has the right the transfer the Websites to the hosting services of its Distributors and all restrictions and conditions that appear in the LA shall apply accordingly. In such event all obligation and undertakings of TM concerning the Hosting Services shall be assigned to the Distributors and you shall have no claim or demands whatsoever against TM regarding the transfer of the Hosting Services or the hosting services of the Distributors.
7.9. You are responsible for ensuring that the Content and all aspects of the Website are compatible with the hardware and software used by TM and/or the Distributors to provide the Hosting Services, as the same may be changed by TM from time to time. TM shall not be responsible for any damages to the Content, the Website or other damages or any malfunctions or service interruptions caused by any failure of the Content or any aspect of the Website to be compatible with the hardware and software used by TM to provide the Hosting Services.
7.10.Upon establishing your Website, you shall be granted a sub-domain name for your Website. The ownership of the sub-domain name belongs to TM, however you are granted a limited, nontransferable, exclusive license to use such sub-domain name for the purpose of marketing, publishing and promoting your Website. All conditions and limitations as for the License shall apply to the license of the sub-domain name and once your License is terminated, your license to use the sub domain name shall be terminated as well.
7.11. TM provides no representations and warranties as for the sub-domain name and will not be responsible for any infringement of third-party rights caused by its registration of the sub-domain name for you. You hereby waive any claims you may have against TM, its employees, officers and Distributors for, and hereby release the same from, any loss, damage, liability or expense arising out of, or relating to, the usage of the sub-domain name and the registration of such sub-domain name in any online or offline network directories, membership lists or registration lists, or the release of the sub-domain name from such directories or lists following the termination of Services by TM for any reason.
8.1. It is hereby clarified that under no circumstances shall TM be obligated to directly support the Customers. For the avoidance of doubt, any other support and maintenance services which shall be required in connection with the Software shall be provided by Licensee, including without limitation help desk services, telephone service calls, training, etc.
8.2. TM may choose from time to time upgrade the Software and/or release new releases thereof. In such event, Licensee shall be entitled to receive such upgrades and releases and this Agreement shall apply with respect thereto mutatis mutandis. For removal of doubt, TM shall in no event be obligated to upgrade or modify the Software in order to adapt it to any technological developments, software, computer system or any regulation and in the event of any upgrades, TM shall not be obligated to perform any backward compatibility whatsoever.
9. Consideration and payment policy
9.1. As consideration for the License & Services granted, you agree to pay after a trial period of 30 days, per each TM website, the then current fees for the next month or a longer period indicated in the package offered by TM that you chose.
9.2. All fees are non-refundable, in whole or in part, even if a website becomes inactive, suspended or cancelled prior to the end of its then current registration term. By accepting this LA you fully understand that once License fee payment is made you will have no recourse for receiving a refund of any part of the fees. It should be clarified that each payment is done per specific website and there will be no transfer of payment or offset of payments between different websites.
9.3. At our option, TM may require that you pay fees through a particular payment means (such as by credit card or by wire transfer) or that you change from one payment provider to another. TM reserves the right to change fees, surcharges, renewal fees or to institute new fees at any time, for any reason, at its sole discretion.
9.4. For avoidance of doubt, the prices set forth in Media Site Builder website are net of any taxes (other than taxes on TM's income), levies, charges or fees, which shall be borne by Licensee, and no deduction of any kind shall be made from the amounts invoiced by TM.
9.5. Licensee shall be solely responsible for establishing the prices that it charges to Customers for the website creation and design and other services given by him or by third parties to Customer, and for obtaining payment from such Customers. No delays or failures to obtain such payments shall affect Licensee's obligations to make payments to TM pursuant to this Agreement.
9.6. Without derogating from any other remedy available to TM hereunder or under any law, with respect to any payment not paid on the due payment date, TM reserves the right to (i) immediately suspend or terminate the License, all at TM's sole discretion; and/or (ii) if payment not paid within 3 months after due payment date the website and its content may be deleted (iii) if you won't pay any payment due for all websites registered under your user name for 3 months the License will be canceled.
9.7. In the event of a charge back by a credit card company (or similar action by another payment provider allowed by us) or other non-payment by you in connection with your payment of fees for each and any website, you acknowledge and agree that the website shall be either a) closed, or b) cancelled and deleted and that TM reserves all rights regarding such domain name.
10. Limited Warranty
10.1.TM makes no warranty with respect to any third party “off the shelf” software from any third party supplier which may be included with or incorporated in the Software or with respect to any external code and/or script, gadget widget etc. which may be included with or incorporated in the Software.
10.2.TM SHALL NOT BE LIABLE UNDER THIS WARRANTY AND WILL HAVE NO OBLIGATION WITH RESPECT THERETO IF THE ALLEGED DEFECT WAS CAUSED BY ANY MISUSE OR ABUSE, OR UNAUTHORIZED ATTEMPTS TO REPAIR, OR UNAUTHORIZED SERVICE, OR USE OF THE SOFTWARE NOT IN ACCORDANCE WITH THE DOCUMENTATION OR OTHER INSTRUCTIONS SUPPLIED BY TM TO LICENSEE, OR IMPROPER INSTALLATION, OR BY ACCIDENT, FAULT, OR NEGLIGENCE, FIRE, LIGHTENING OR OTHER HAZARD OR ANY CAUSES EXTERNAL THERETO. IN ADDITION, TM DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE SHALL BE ERROR-FREE OR THAT THE SOFTWARE AND/OR THE SERVICES WILL MEET THE REQUIREMENTS OF RESELLERS AND/OR CUSTOMERS.
10.3.EXCEPT AS EXPRESSLY PROVIDED ABOVE, THE PARTIES HEREBY EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED RELATING TO THE SOFTWARE AND/OR THE SERVICES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF NON-INFRINGEMENT, SUITABILITY, MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE.
10.4.NOTWITHSTADING ANYTHING TO THE CONTRARY HEREIN, IN NO EVENT AND UNDER NO CIRCUMSTANCES SHALL TM BE LIABLE TOWARDS THE CUSTOMERS, AND THE WARRANTY IS NOT AND SHALL NOT BE CONSTRUED AS A CONTRACT OR UNDERTAKING TO THE BENEFIT OF THIRD PARTIES, INCLUDING WITHOUT LIMITATION, TO THE BENEFIT OF THE CUSTOMERS.
10.5.The remedies stated in this Section 5 constitute TM's sole and exclusive obligations and liability for breach of the Warranty.
11. Limitation of Liability
11.1.IN NO EVENT SHALL TM BE LIABLE TO LICENSEE OR TO ANY THIRD PARTY FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR FOR ANY INDIRECT DAMAGES SUCH AS, BUT NOT LIMITED TO, DAMAGES RESULTING FROM EQUIPMENT DOWNTIME OR LOSS OF DATA, SUBSTITUTIONS, LOST PROFITS OR REVENUE OR EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF ANY CLAIM, WHETHER OR NOT FORESEEABLE AND EVEN IF TM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
11.2.IN NO EVENT WILL TM’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT OR THE SOFTWARE AND/OR THE SERVICES, FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING WITHOUT LIMITATION TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY AND BREACH OF WARRANTY, EXCEED THE FOLLOWING:
IF THE RELEVANT DOMAIN IS DIRECTED TO TM’S DNS SERVICE: IN CASE OF SERVICE UNAVAILABILITY FOR 3 HOURS UP TO 5 HOURS IN THE CALANDER MONTH – SERVICE CREDIT EQUALS TO 5% FROM THE MONTHLY FEE FOR THAT MONTH.
IN CASE OF SERVICE UNAVAILABILITY FOR 5 HOURS UP TO 14 HOURS IN THE CALANDER MONTH – SERVICE CREDIT EQUALS 20% TO THE MONTHLY FEE FOR THAT MONTH.
IN CASE OF SERVICE UNAVAILABILITY FOR 14 HOURS AND UP IN THE CALANDER MONTH – SERVICE CREDIT EQUALS 35% TO THE MONTHLY FEE FOR THAT MONTH AND LICENSEE MAY CANCEL THIS AGREEMENT AND RECIVE REFUND OF PAYMENTS MADE BY LICENSEE WITH REGARD TO THE TERM LATER TO THE CANCELATION DATE.
Service credit is
not provided automatically. Licensee must provide TM with Email using the contact
us dialog box for each event for which credit is being requested. Service credit
granting is contingent upon Licensee notifying TM in writing within 24 hours after
service unavailability has occurred. The durarion of the service unavailability
will be determined by TM at it’s sole discretion based upon TM’s internal records.
IF THE RELEVANT DOMAIN IS NOT DIRECTED TO TM’S DNS SERVICE IN NO EVENT SHALL TM BE LIABLE TO LICENSEE OR TO ANY THIRD PARTY FOR UNAVAILABILITY. IN OTHER MATTARS NOT CONCERNING SERVICE UNAVAILABILITY IN ANY WAY – THE LESSER OF THE AMOUNTS ACTUALLY RECEIVED BY TM FROM LICENSEE DURING THE 3 LAST MONTHS PRECEDING THE CLAIM FOR THE WEBSITES WHICH ARE THE SUBJECT MATTER OF THE CLAIM BUT NO MORE THAN 500$.
Licensee will indemnify TM from and against any cost, liability and expense (including reasonable counsel fees) sustained by it in connection with any claim, suit or proceeding brought by any third party relating to: (i) the non-fulfillment of any agreement, covenant or obligations of Licensee in connection with this Agreement; (ii) any breach of any warranty or representations made by Licensee hereunder; (iii) performance or non-performance of Licensee’s obligations under any Customer License Agreement and/or under any other agreement between Licensee and the Customers; (iv) any infringement that arises out of, results from or relates to any modification, combination, enhancement or misuse of the Software by Licensee or by any Customer; or (v) any infringement that arises out of, results from or is in connection with the Customer Materials.
13. Trademarks and Documentation
13.1. As an ancillary and complementing right to the license granted to Licensee and subject to the terms and conditions of this LA, TM hereby grants to Licensee a limited, non-exclusive, non-sub licensable and non-transferable license to use the Trademarks for the sole purpose of marketing the Software and the Services and solely for the term of this Agreement. Licensee agrees to state in appropriate places on all materials using the Trademarks that the Trademarks are trademarks of TM and to include the appropriate trademark or service mark symbols. Licensee agrees not to take any action inconsistent with such ownership and further agrees not to adopt, use or attempt to register any trademarks, service marks or trade names that are confusingly similar to the Trademarks or in such a way as to create combination marks with the Trademarks.
13.2. Licensee, its employees and/or or others on its behalf shall not remove or alter any Trademarks or other identifying marks appearing on the Software unless it is an option offered by the Software.
13.3. In addition, TM hereby grants Licensee a non-exclusive license to copy the Documentation for the sole purpose of distributing same to the Customers in connection with the Software and the Services and shall have a personal, non-transferable and non-exclusive right to use the Documentation for the purposes of installing, assembling, integrating, selling, supporting and maintaining the Software and/or the Services, as applicable.
14. Intellectual Property Rights
14.1.Licensee acknowledges and agrees that (a) TM retains and shall exclusively own all title and rights in connection with the Software, the Services, the Trademarks and the Documentation, including without limitation all intellectual property rights, patents, know-how, trade secrets, copyright and other proprietary rights, both registered and unregistered, owned and/or otherwise used by TM and all goodwill related thereto and all modifications and improvements thereto and derivative works thereof, regardless of whether Licensee, its employees, contractors or others on its behalf may have contributed to the conception of such work, joined in the effort of its development, or paid TM for the use of the Software, (collectively the “IP Rights”); (b) the IP Rights may not be exploited, reproduced or used by Licensee except as expressly permitted in this Agreement; and (c) Licensee shall not have or acquire any right, title or interest in or otherwise become entitled to any IP Rights, including without limitation by taking delivery of, making payment for, distributing and/or selling or otherwise using or transferring the software and/or the Services and/or performing its obligations under this Agreement.
14.2.Notwithstanding the use of the terms “purchase” or “sale” or other similar terms in this Agreement in connection with the Software, such Software is not, in any manner whatsoever, being purchased or sold, and said terms have been used solely for convenience and in order to reflect current business language.
15. Confidential Information
15.1. The term “Confidential Information” herein, shall mean any and all information, provided by a party (“Disclosing Party”) to the other party (“Receiving Party”) pertaining to the Disclosing Party, its business and/or activities, whether provided orally or in writing, or which Receiving Party may obtain, have access to or be exposed to, in the course of performance of its respective obligations and/or rights hereunder, including without limitation, any financial, technical, commercial and business information, cost information, technology, manufacturing processes, product plans, know-how, trade secrets, prices, information with respect to employees, suppliers, customers and marketing. Notwithstanding, Confidential Information shall not include information which the Receiving Party can prove was: (i) already generally available to the public, through no act or omission of the Receiving Party or of any other third party owing an obligation of confidence to the Disclosing Party; (ii) rightfully received by the Receiving Party from a third party without any restrictions as to its use or disclosure; (iii) required to be disclosed pursuant to an order of a court of competent jurisdiction or by applicable law or regulation, provided however, that (a) such disclosure is made only to the extent and solely to the recipient legally required; and (b) the Receiving Party provides the Disclosing Party with adequate prior written notice of such legal requirement and with the opportunity to oppose the disclosure or obtain a protective order.
15.2. During the term hereof and thereafter, the Receiving Party shall only use Confidential Information of the Disclosing Party for purposes in furtherance of this Agreement and undertakes to maintain the Confidential Information in strict confidence at all times and not to, directly or indirectly, whether in writing or otherwise, communicate, publish, reveal, describe, divulge or otherwise disclose or make available the Confidential Information. The Receiving Party shall not disclose Confidential Information of the Disclosing Party to any third parties except as otherwise permitted hereunder. The Receiving Party may disclose Confidential Information of the Disclosing Party only to its employees, on a need to know basis and who are bound in writing to retain the confidentiality thereof. The Receiving Party shall maintain Confidential Information of the Disclosing Party with at least the same degree of care it uses to protect its own proprietary information of a similar nature or sensitivity, but no less than reasonable care under the circumstances.
15.3. Upon the expiration or termination of this Agreement and/or upon Disclosing Party’s request, the earlier to occur, each party (as Receiving Party) shall, at Disclosing Party’s discretion, either promptly return to the Disclosing Party all Confidential Information of the Disclosing Party embodied in tangible form, or certify in writing to the Disclosing Party that all such Confidential Information has been destroyed.
16. Term and Termination
16.1. This Agreement shall terminate twelve (12) months from the Effective Date and shall be automatically renewed for additional twelve month periods unless otherwise notified by any party to the other party at least thirty (30) prior to the end of the term hereof or any renewal term.
16.2. Without derogating from any right or remedy under law, either party may terminate this Agreement at any time upon written notice to the other party if the other party is in breach of its obligations hereunder and fails to cure such breach within fifteen (15) days following receipt of written notice of such breach. Notwithstanding anything else to the contrary, a breach by Licensee of Sections 3, 11, 12, 14 and 15 or any payment obligations will entitle TM to terminate this Agreement immediately upon written notice to Licensee.
16.3. In no event shall any termination or expiration of this Agreement affect such provisions that are expressed to operate or to have effect thereafter, including without limitation Sections 14 (Intellectual Property) and 15 (Confidentiality) above, nor shall it affect any rights or monetary obligations accrued or existing at the time of such termination or arising out of such termination.
16.4. It is hereby clarified that Licensee shall have no right to any compensation for any loss and/or damage arising as a result of the expiration or termination of this Agreement, howsoever arising.
16.5. For removal of doubt, upon termination of this Agreement, for any reason whatsoever, Licensee shall cease any use of the Software and the License shall terminate. In addition, upon termination of this Agreement, TM shall be entitled to have the Customer License Agreements assigned to TM and/or any third party on its behalf at its sole discretion and Licensee shall include a provision in each Customer License Agreement which shall allow such assignment to TM.
17.1.Assignments. This Agreement and any of the rights and/or obligations granted hereunder may not be assigned or transferred by either Party without the prior written consent of the other Party except that TM may assign its rights and obligations hereunder to any subsidiary or affiliate or in connection with a merger or other business combination or the transfer of the business relating to the Software and/or the Services. Any attempted assignment in violation of this provision shall be null and void.
17.2. Waiver. A waiver by either Party of any term or condition of this Agreement whether expressed or implied, in any one instance, or the failure by either Party to enforce any term or condition hereof shall not be construed as a waiver of any other terms or a waiver of future enforcement of that or any other term or condition.
17.3. Governing Law and Forum. This Agreement shall be governed by and construed solely under the laws of the State of Israel, without reference to conflict of laws principles. Exclusive jurisdiction and venue for all disputes arising from this Agreement shall be the competent courts located in New-Jersy USA, and each Party hereby agrees to submit to the jurisdiction thereof; however, TM shall retain the right to institute proceedings including for interlocutory, injunctive and/or other equitable relief in any other jurisdiction.
17.4. Relationship of the Parties. The Parties hereto are independent contractors, and neither the execution nor performance of this Agreement will be construed to have established any agency, joint venture or partnership relationship between the Parties. Licensee shall have no authority to act for or to bind TM in any way, to warrant or to execute agreements on behalf of TM, or to represent that TM is in any way responsible for the acts or omissions of Licensee.
17.5. Entire Agreement. This Agreement together with the exhibits and annexes hereto, supersede all previous understandings or agreements between the Parties relating to the subject material hereof, whether written or oral, and no such previous understandings or agreements have or shall have any effect. This Agreement expresses the complete and final understanding with respect to the subject matter hereof and may not be changed in any way except by an instrument in writing signed by both Parties, expressly indicating the Parties’ intent to modify or change the terms hereof.
By using the Services you agree to all terms and conditions of this Agreement.
This Agreement may change over time. If, as a result of such a change,
you no longer agree with the terms of this Agreement,
you agree that your exclusive remedy is to request us to cancel your registration to the services.
In such case you will not receive a refund for any fees you may have paid.
If you continue to use the Services following a change in this Agreement and/or the Services,
your continued use of the Services indicates your consent to the changes.
Your continued use of any website through out system shall constitute your acceptance of this Agreement as well as additional rules or policies that are or may be published by TM, each with the new modifications.
17.7. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
17.8. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. If this Agreement is executed in counterparts, no signatory hereto shall be bound until all the Parties named below have duly executed or caused to be duly executed a counterpart of this Agreement.
17.9. Force Majeure. Other than licensee's payment obligations hereunder, neither Party shall be deemed to be in breach of this Agreement or of any purchase order issued hereunder, nor shall such Party incur liability or bear responsibility due to a delay or failure in performance (other than of obligations regarding the payment of money or confidentiality), which delay or failure caused by circumstances beyond the reasonable control of the Party affected, including but not limited to acts of God, fire, flood, war, terrorism, embargo, accident, labor disputes, or shortage of material, equipment or transport, any law, regulation, or any ruling of court, tribunal or governmental agency. A Party affected by an event of force majeure shall: (a) notify the other Party hereto in writing of any such event and the estimated duration thereof: and (b) make reasonable efforts to remedy any such event of force majeure. Performance that is delayed by any event of force majeure shall be extended for such time as the event shall continue.
17.10.Notices. All notices given by one Party to the other hereunder will be given in writing and will be deemed to have been delivered to the addressee: (i) immediately upon transmission if sent by electronic mail or facsimile and confirmed by a machine printout; (ii) one (1) business day after deposit with a reputable commercial overnight carrier; or (iii) upon five (5) business days after being sent by registered or certified mail, postage prepaid. All notices and communications shall be sent to the addresses indicated in the preamble above or to such other address as a Party may thereafter give notice, in writing, to the other Party of this Agreement.
17.11. Captions. The captions of Sections in this Agreement are intended solely for convenience, and will have no significance in the interpretation of this Agreement