This MeshWorks Media Corporation (the “Company”) Product License and Use Agreement (the "Agreement") describes the terms and conditions regarding your license to use the Company’s products and related services (the “Products” or “Services”). Please read the following terms and conditions carefully. This Agreement is between the Primary Account Holder and/or you, collectively referred to herein as (the “Licensee”) and MeshWorks Media Corporation (“Licensor”) with its principal place of business at 2600 South Shore Blvd., Suite 100, Houston, Texas 77573. As used herein, the terms "we," "our," and "us" refer to Licensor and the terms “you” or “your” refer to Licensee.
The terms and conditions of this Agreement apply to any and all Products made available by Licensor to the Licensee under terms of this Agreement. This is a contract between Licensor and you as a Licensee of the Products and Services.
2. Agreement Content
By subscribing to the MeshWorks Services, Licensee agrees to abide by the terms and conditions of this Agreement and the terms of the applicable pricing plan and if applicable, rate sheets associated with the particular MeshWorks Services selected by Licensee.
3. Service Description
For purposes of this Agreement, MeshWorks Services (the “Services”) shall mean any form of web, cloud or mobile communications services, content management and analytical services utilized by the Products. Upon activation of Licensee’s account, Licensor shall provide MeshWorks Service to Licensee in accordance with the requirements of this Agreement. Licensor will supply the MeshWorks Services to Licensee using networks of various third party Internet, Cloud and/or cellular communications or satellite communications providers (collectively "Service Providers"). The networks vary with regard to technology and/or all equipment; Services are delivered and transported in a manner over which Licensor has no control and no responsibility or liability.
4. Licensee Representations
Licensee represents to Licensor that: (a) Licensee has the power and authority to enter into and perform Licensee’s obligations under this Agreement; (b) Licensee will comply with all terms and conditions of this Agreement and the terms of the applicable pricing plan and rate sheets associated with the particular Services selected by Licensee; (c) all information provided by Licensee to Licensor as part of this Agreement or elsewhere is truthful, accurate and complete. Licensee shall promptly notify Licensor of any changes in Licensee’s account information. Failure by Licensee to provide Licensor with accurate, complete, or updated account information shall constitute a material breach of this Agreement, and may result in immediate termination of this Agreement or suspension of Licensee’s account by Licensor.
5. Additional User Accounts
Licensee may at any time add additional account user(s) under the Licensee’s primary account. If Licensee makes such designation, Licensee gives Licensor permission to (a) provide Services directly to such user(s) to the extent such Services would otherwise be available to Licensee, and (b) make changes to Licensee’s primary account to reflect the additional monthly charges per each new account added. Licensee agrees to accept financial responsibility for all additional account user(s) relating to Licensee’s primary account. Licensee may re-assign or deactivate an authorized user(s) from the primary account at any time during the term of the Agreement.
6. Licensees’ Liability for Unauthorized Use
Licensee shall be solely responsible and liable for unauthorized or inappropriate use of Licensee’s account whether fraudulent or otherwise. Licensee is considered the registered recipient of the Services until Licensor receives such notice in writing, and Licensee will be liable for any charges or fees incurred by any use of the Services up to the time that Licensor receives such notice in writing, unless otherwise provided by law. Licensee will not be liable for charges and fees incurred by unauthorized or inappropriate use after Licensor has received Licensee notification. Licensee is responsible for abiding by all international and jurisdictional rules and regulations regarding use of the Services. Neither MeshWorks Media Corporation, its Affiliate(s) and/or its Services Providers may be held liable by Licensee for any misuse of the Services by the Licensee or its authorized or unauthorized users. Licensee hereby indemnifies Licensor its Affiliates and third party service providers for such misuse by the Licensee or otherwise.
7. Availability of Limited Services
Services may not be continuous, uninterrupted or error- free. Without limiting the foregoing, the Services may become interrupted, delayed, or otherwise limited for a variety of reasons, including environmental conditions, system capacity, priority access by National Security and Emergency Preparedness personnel in the event of a disaster or emergency, coordination with other systems, equipment modifications and repairs, and problems with the facilities of interconnecting carriers. Limitations of liability set forth herein govern unless they are prohibited by applicable law.
8. Use of the Services
Licensee agrees not to use the Services for any unlawful or abusive purpose or in a way that creates or risks damage to our business, reputation, employees, facilities, or to any third parties, including, but not limited to, communications providers, or to the general public. Licensee agrees that Licensee is fully responsible for any individuals who use your login name and password to access your account (your "Account") with or without your knowledge and/or consent, including any charges incurred or consequences if such individual misuses the Services or violates this Agreement. LICENSEE IS SOLELY RESPONSIBLE FOR THE ACCURACY AND NATURE OF THE INFORMATION DISTRIBUTED FROM YOUR ACCOUNT. Definition of Spam and Anti-Spam Policy and Can Spam Act of 2011
Spam is unsolicited e-mail, often of a commercial nature, sent indiscriminately to multiple mailing lists, individuals, or newsgroups. Spammers take resources away from users and from service suppliers. By sending email only to those who have requested to receive it, you are following accepted permission-based email guidelines.
Licensor has a zero tolerance spam policy when using the MeshWorks platform IN ANY MANNER. Any Account Holder found to be using MeshWorks Services in violation of the Can Spam Act of 2011 will have their primary account immediately terminated and will forfeit any security deposits or unused payments for Services. If you know of or suspect any violators, please notify us immediately at email@example.com Licensee is responsible for the legality of all of email lists, including: (1) any imported opt-in lists, (2) any business relationship lists (recipient has made a purchase, requested information, responded to a survey, or had offline contact with you), (3) any bought or rented legitimate opt-in list.
9. Federal Law Compliance
The Federal anti-spam law went into effect on January 1st, 2004 and preempts all state laws. The CAN-SPAM is an opt-out law; it makes most spam illegal and ultimately less attractive to spammers. If a recipient wants to opt-out, you must stop sending e-mails or be subject to severe penalties. (Penalties can include a fine and/or imprisonment for up to 5 years). The Federal anti-spam law: (1) prohibits fraudulent or deceptive subject lines, headers, return addresses, etc. (2) makes it illegal to send e-mails to e-mail addresses that have been harvested from websites, (3) criminalizes sending sexually-oriented e-mails without clear markings, (4) requires inclusion of a postal mailing address in the message, (5) includes both criminal and civil penalties and allows suits by the Federal Trade Commission (FTC), State Attorneys General, and Internet Service Providers. Licensee agrees that if you or one or more recipients of any of your MeshWorks messages fall under the jurisdiction of the United States that you adhere to the CAN- SPAM Act of 2011. Unlimited MeshWorks Business Composer Services are provided primarily for business communications of less than 50,000 message views per month per individual seat license. Licensor reserves the right to review each user account that exceeds 50,000 message reads per month to consider compliance with the CAN-SPAM Act.
10. Authorized Resellers
Licensee acknowledges that Licensor may from time-to-time utilize or contract independent Resellers and/or Affiliates (the “Resellers”) for the purposes of marketing and selling the MeshWorks Products and Services. A Resellers ability to make the Products and Services available is derived from and limited to the terms of the agreement between Licensor and the Reseller. Services and/or support provided by the Reseller terminate if the agreement between the Licensor and the Reseller are terminated. If you have purchased this Product License through a Licensor approved Reseller and the Resellers agreement is terminated for any reason, your current service under this Agreement will continue uninterrupted for the term of the Agreement, so long as the Licensees account is in good standing as defined herein. Once the initial term of this agreement has been reach, the Licensee may be able to purchase the Services directly from the Licensor or from another authorized Reseller of the Products and Services as may be recommended by the Licensor.
The Internet is an insecure medium and Licensor does not represent, warrant or guarantee the security or integrity of any communications made or received using the Product or Services. The primary Account Holder and the individual Seat Licensee shall be solely responsible and liable for the security, confidentiality and integrity of all messages and the content that primary Account Holder and/or Licensee receives, transmits through or stores on the Licensors Cloud and/or Data Warehouse Services. The primary Account Holder and the Licensee shall be solely responsible and liable for any authorized or unauthorized access to Licensee’s account by any person. The primary Account Holder and the Licensee agrees to bear all responsibility and liability for the confidentiality of Licensee’s password and all use of the Services with Licensee’s password.
12. Internet Risks
The Licensee acknowledge that Internet sites not created or maintained by Licensor, and use of the Internet, might consist of, include and/or provide access to images, sounds, messages, text, service or other content and material that may be unsuitable for minors and that may be objectionable to many adults. If you know of or suspect any violators, please notify us immediately at firstname.lastname@example.org . Licensee acknowledges that use of Internet images through the Services is at Licensee’s sole risk. The reliability, availability, legality, performance and other aspects of resources accessed through the Internet are beyond Licensor’s reasonable control and are not in any way warranted or supported by Licensor or its Service Providers. Licensor does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from sites or resources available through the Services. Licensee acknowledges that safeguards relative to copyright, ownership, appropriateness, reliability, legality and integrity of content may be entirely lacking with respect to the Internet and content accessible through it. Licensee acknowledges and agrees that Licensee assumes all risk and liability of any use of the Internet through Licensee’s account.
13. Use and Control of Licensee Information
Licensor does not rent, sell, or share personal information about you or any MeshWorks customer with other people or non-affiliated companies except to provide products or services you've requested, when we have your permission, or under the following circumstances: (1) we respond to subpoenas, court orders, or legal process, or to establish or exercise our legal rights or defend against legal claims, (2) we believe it is necessary to share information in order to investigate, prevent, or take action regarding illegal activities, suspected fraud, situations involving potential threats to the physical safety of any person, violations of MeshWorks Terms and Conditions, or as otherwise required by law.
14. Privacy Limitations
Licensor and/or its Resellers may share with or provide to the Service Providers such Licensee account information as may be necessary to ensure and provide proper Licensee account maintenance and service and for any other lawful administrative purposes. Licensee acknowledges and agrees that because the Services involves data communications transmitted over the internet or wireless systems that these transmissions may not be completely private or secure and Licensor and its Resellers makes no warranties regarding privacy of communications. Licensee consents to Licensor, its Resellers or its Service Providers monitoring Licensee’s account activity in order to resolve billing queries prevent and minimize fraud and ensure the quality of the Services.
15. Copyright and Trademark Infringement
Except for public domain material, all content available through or distributed over the Services is subject to copyright, database protection, and other rights under applicable laws. Unauthorized use of such content may violate copyright, trademark and other laws. Licensee may not copy, distribute, transmit or publish such content in any form, including printed, electronic, digitized, audio or otherwise, or modify all or any portion of such content without the prior written consent of the copyright owner. Licensee’s infringement of any third party intellectual property rights shall be a breach of this Agreement.
16. Trademark Grant to Use
Subject to the terms of this Agreement, Licensee grants a non-exclusive, non-transferable, royalty free, license to use all Licensee Trademarks "Marks" in turn Licensor grants to Licensee a non-exclusive, non-transferable, royalty free, license to use all Licensor's Trademarks "Marks"; The trademarks, service marks, trade names, logos, or other words or symbols published by Licensor and the Licensee are marks that identify or are associated with the product(s), service(s) or the business of Licensor and the Licensee. The Marks shall at all times remain the exclusive property of the other. Marks may only be used as they appear on the product(s), service(s), promotional materials and web or mobile elements published by Licensor and / or by Licensee. Any use of the others Marks in any medium will be subject to prior review and approval and must conform to the prevailing policies relating to the use of the Marks as published by Licensor and the Licensee. Either party may revoke the right of the other to use the Marks at any time. Licensor and Licensee may refer to themselves, in connection with exercising its rights under this Agreement, as a “Proud Partner” of the other but solely in connection with the promotion, marketing, distribution, and sale of the Services and only during the term of this Agreement. Licensor and Licensee may use the others Marks in conjunction with all Web, Mobile, Printed or Digital Promotions. Use of the others Marks shall not be unreasonable withheld.
Ownership of Trademarks: Licensor and Licensee agrees and acknowledges the others right and interest in the Marks and agrees that neither party will not do anything to impair those proprietary rights or seek to acquire or register any rights in the others Marks or use any trademarks, service marks, trade names, logos, or other words or symbols that are confusingly similar to the others Marks in any language. Licensor and Licensee acknowledges that its use of the others Marks shall not create in Licensor and/or the Licensee any right, title or interest in the others Marks and that all use of the others Marks and the goodwill symbolized by and connected with such use of the others Marks shall inure to the benefit of Licensor and Licensee or their respective licensors, as appropriate. Licensor and Licensee agrees to provide reasonable assistance to the other in securing and maintaining the goodwill of the others Marks and in the protection thereof and further agree to take reasonable steps to protect the others proprietary rights in the product(s) or service(s).
17. Permission to Use Quotes or Personal Statements
Licensor and Licensee authorize the other to use, publish or reprint in whole or in part statements, pictures, or endorsements made by or of the other. This authorization shall extend to each other's Web Sites, advertising, publicity and promotions or as part of case studies published by the other.
18. Taxes and Disputed Charges
Licensee shall be solely liable for the payment of all MeshWorks Services and applicable taxes and regulatory fees (including but not limited to fees associated with universal service or other governmental programs or assessments), without setoff, deduction for payment processing or counterclaims. The price of service does not include sales, usage, excise, ad valorem, property or any other taxes now or hereafter imposed, directly or indirectly, by any governmental authority or agency with respect to the service. Licensee agrees to pay such taxes directly or reimburse Licensor for any such taxes that are assessed based on provision of the Services to you. Any banking fees must be settled by Licensee.
Licensee shall pay Licensor for the use of Services in accordance with the fee schedule provided to Licensee at the time this Agreement is accepted and executed by the Licensee (including any and all applicable federal/national, state, provincial or local taxes). Licensee should carefully review the fee schedule and applicable service plan (if any) to understand what Services are included in this Agreement. It is Licensee’s sole responsibility to gain an understanding of the technical aspects, use, and operation of the product, as well as the details and terms of the Services and the associated rates. Licensor shall not under any circumstances abate or refund charges to Licensee’s account arising from the fact that, or on the basis of Licensee claims that Licensees primary account information was not properly configured at the time charges were accrued.
If a charge or, if applicable, an invoice is disputed Licensee must pay the charge or invoice within the due date and must notify Licensor in writing of the dispute, together with the legal basis for such dispute, within thirty (30) calendar days after the charge or invoice due date. Any claims received by Licensor later than thirty (30) calendar days after the charge or invoice due date may be rejected by Licensor. Licensor will respond to Licensee within thirty (30) calendar days after receipt of the written notice of dispute, advising on the action being taken to resolve the dispute. Failure by Licensor to respond within thirty (30) calendar days from receipt shall not be considered a breach of Licensor’s responsibilities under the Agreement. If Licensor accepts the claim from Licensee, Licensor shall issue a credit to Licensee within sixty (60) calendar days from acceptance of the claim.
20. Billing and Payment
Licensee is responsible for the payment of all charges for all Services furnished to Licensee under this Agreement and for the payment of all charges billed to Licensee’s account. Licensee remains responsible for charges even if Licensor’s Services are temporarily unavailable, except that if there is a service outage in excess of twenty four (24) hours, then Licensee will receive a credit equal to one day for each day of an outage (rounded down to the nearest day).
By accepting these terms, Licensee hereby authorizes charges to be made against a (1) a primary credit card account or automatically debited from a checking account in order to use the Services or (2) (IF APPROVED) be invoiced on net 30-day terms. Licensor will initially charge to the credit card or issue an ACH or eCheck debit to the authorized checking account or must receive payment in full by other means for the first full month of service fees prior to the account activation date. Licensee’s recurring monthly fees will be charged to the credit card or issue an ACH or eCheck debit to the authorized checking account or invoiced for payment every 30-days. No additional notice or authorization shall be required for such charges. If Licensee has inquiries about or objections to such charges, Licensee must make all inquiries or objections in writing and must be received by Licensor at the address listed or the address listed in the “Contact Us” section of the www.meshworksme.com website no later than thirty (30) days after the charge is incurred; provided, however, that all amounts due us, including disputed amounts, must be paid when due. If you do not object within thirty (30) days after a charge is incurred, any dispute is deemed waived. Licensor will make good faith efforts to resolve disputes in accordance with our procedures. Payments must be made in US dollars only.
If Licensee’s agreement provides for monthly billing based on a fluctuating number of seat licenses active in a 30-day billing cycle, the Licensee shall pay for the number of products recorded as active during a 30-day billing cycle.
All bills are due and payable not later than 30 days after electronic receipt of the statement for that month’s statement (“Due Date”). Failure to pay the account on or before the Due Date will subject the account to the charges set forth immediately below and subject the account to termination if the default is not cured within 10 calendar days commencing on the date of receipt of an electronic notice of default.
Each month a late charge of 3% of the total overdue balance will be applied to each Licensee’s service bills not paid by the due date. Licensee shall pay all costs including, without limitation, reasonable attorney fees, the fees of any collection agency, or other fees arising from efforts to collect any unpaid balances on your Account and any other costs incurred by Licensor in exercising any of its rights under the Agreement. Should Licensee services be suspended for non-payment, Licensor will charge a fee of up to One Hundred Twenty Five US dollars $125.00 for re-activation of the suspended account. Licensee agrees to immediately notify Licensor in the event Licensee closes their bank or credit card account. There will be an additional charge of Twenty Five US dollars $25.00 for any rejection of any debit to a credit card or returned check.
21. Term and Termination for Convenience
Services begin at the time your MeshWorks account is activated by Licensor and will continue for the term selected (“Initial Term”). Services under a Licensee plan shall automatically renew for additional periods of up to one (1) year at the Service rates offered by the Reseller and/or the Licensor at the time of renewal, unless Licensee gives Licensor or Licensor gives Licensee notice of termination at least 30 days prior to the end of the Licensor Service Plan term or relevant renewal term (as the case may be).
You may terminate your Account and use of the Services at any time by sending written notice to Licensor. Early termination fees will billed to your account and you will remain liable for all charges accrued until your Account has been deactivated by Licensor. We are not obligated to provide the Services to you if this Agreement is terminated, or if your Account is past due. Any voluntary Services provided by us in such cases will not be considered a waiver of this paragraph, and you hereby release us from any and all liability arising out of such voluntary Services. YOU UNDERSTAND THAT UPON TERMINATION OF THIS AGREEMENT, NO FURTHER SERVICES WILL BE PROVIDED AND ANY INFORMATION, CONTENT, OR MEDIA WILL BE LOST.
22. Early Termination Fee
If this Agreement is terminated during the Initial Term (a) by Licensee for any reason, or (b) by Licensor for cause (collectively an “Early Termination”), Licensee will be required to pay Licensor an early termination fee equal to 75% of the balance of all payments remaining on the Licensee’s account.
23. Termination for Cause.
Upon (i) non-payment of any sum due to Licensor, (ii) any violation of the terms, conditions, laws, rules or regulations governing the use of Services, (iii) Licensee makes an assignment for the benefit of creditors, or admits in writing its inability to pay its debts as they mature, (iv) a trustee or receiver of any substantial part of Licensee’s assets is appointed by any court; or (v) a proceeding is instituted under any provision of the Federal Bankruptcy Laws by or against Licensee, and such proceeding is acquiesced in or is not dismissed within 60 days or results in an adjudication in bankruptcy, Licensor may, by a notice in writing and without incurring any liability, refuse, reduce or temporarily or permanently terminate the Services.
In addition, the Services may be refused, reduced or temporarily or permanently terminated by Licensor immediately without notice and without incurring any liability if: (a) Licensor has not received and posted Licensee’s payment by the due date on Licensee’s bill; (b) Licensor is informed that the Services are being used by Licensee in a manner which might adversely affect Licensor’s service to others; (c) Licensor receives from a law enforcement agency a written finding that probable cause exists to believe (i) that Licensee has used or will use the Services in violation of or to violate the law, and (ii) that the character of Licensee’s use of the Services is such that immediate action is required to protect the public’s health, safety or welfare; (d) Licensor is requested by a Service Provider to deny service to the Licensee which has been determined to be associated or potentially associated with the fraudulent use of the Services or otherwise disconnected from Services for non-payment of, or owing unpaid, service charges; (f) Licensor determines that Licensee’s application for Services included information that was fraudulent, false or incomplete; (g) Licensee uses either not authorized by or on record with Licensor; or (h) there is unusual account activity or Licensor reasonably suspects the occurrence of any other event of default or breach pursuant to this Agreement. If Services are suspended or terminated for non-payment, Licensor may, at its sole option, reactivate the Services upon payment by Licensee in full of the past due amount, any penalties associated with the late payment and a service restoration charge.
24. Proprietary Rights
Licensee acknowledges and agrees that Licensor has exclusive and valuable rights (the “Proprietary Rights”) to the Software, Business Methods, Methods, Systems, Computer Instructions of the MeshWorks Services (the “Property”) and that such Proprietary Rights in and to the Property shall at all times remain with Licensor. The Property and Licensor Proprietary Rights therein are protected by U.S. Patent, Trademark and Copyright law(s) and under international conventions. Licensor hereby grants to Licensee a non-exclusive, revocable, limited license to use the Property as part of receiving the Services hereunder. Licensee shall not decompile, disassemble, decrypt, extract or reverse engineer the Property for any purposes. Licensee shall not adapt, modify or create derivative works based on the Property. Licensee agrees to take reasonable steps to protect Licensor’s Proprietary Rights in and to the Property. Licensee understands that persons violating U.S. Patent, Trademark and federal Copyright law(s) may be subject to civil or criminal penalties.
25. Changes in General Terms and Conditions
Licensor may modify any and all terms including but not limited to rates, fees, scope of Services, Services plans, special promotions, and other such programs at any time during this Agreement upon notice to Licensee. Licensor may charge Licensee additional or different fees in consideration for providing such new or modified services to Licensee. In such event, Licensee may terminate this Agreement and may do so if you do not accept any such changed terms. IF YOU CONTINUE TO USE THE SERVICES AND/OR DO NOT TERMINATE THIS AGREEMENT WITHIN FIFTEEN (15) DAYS AFTER RECEIVING OUR NOTICE OF A CHANGE, IT WILL MEAN THAT YOU ACCEPT THE CHANGED TERMS AND, ACCORDINGLY, THEY WILL BE BINDING ON YOU FROM THE DATE OF SUCH NOTICE. Termination of services under this paragraph is not considered an Early Termination and you will not be charged a cancellation fee. Acceptance by Licensor of advance payments from you shall not be deemed a waiver of our right to modify our fees, rates, Services, or other terms at any time and shall not relieve you of your obligation to pay such modified charges. You may obtain the currently effective MeshWorks Terms and Conditions online at www.meshworksme.com or by contacting your Reseller (if any) or us the Licensor.
Notices to you shall be deemed given if deposited in the U.S. Mail or sent electronically and addressed to your last known address as shown on the reverse side of the Agreement. Except as otherwise provided in this Agreement, notices to Licensor are effective only if in writing and if delivered by overnight delivery or certified mail, return receipt requested to Licensor at the address above or at one of the addresses shown in the "Contact Us" section of the www.meshworksme.com or other Licensor related websites as offered by Licensor or if sent electronically to one of the email addresses listed on the “Contact Us” link of the www.meshworksme.com other Licensor related website. The date of mailing of any notice hereunder shall be deemed the date on which such notice has been given.
Licensor warrants that it will use reasonable commercial efforts to provide the Services to Licensee.
LICENSEE SHALL ABIDE BY ALL OF THE CURRENT REGULATIONS IN EFFECT IN COUNTRIES WHERE THE MESHWORKS SERVICES MAY BE USED, INCLUDING LICENSING REQUIREMENTS. LICENSOR WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY OPERATIONAL RESTRICTIONS, CUSTOMS, LICENSE OR PERMIT FEES REQUIRED FOR OPERATION OF THE MESHWORKS SERVICES IN THE DESTINATION COUNTRY. IN ADDITION, LICENSOR SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR FINES ASSOCIATED WITH SERVICE TERMINATION OR FOR LEGAL RAMIFICATIONS OF USING THE MESHWORKS SERVICES IN COUNTRIES WHERE IT IS PROHIBITED.
29. Governing Law
This Agreement is governed by the laws of the State of Texas, United States of America without regard to its conflict of law provisions.
30. Waiver and Severability
Neither the waiver by either of the parties hereto of a breach of or a default under any of the terms and conditions of this Agreement nor the failure of either of the parties, on one or more occasion, to enforce any of the provisions of this Agreement shall be construed as a waiver of any subsequent breach or default of a similar nature, or as a waiver of any provisions, rights or privileges hereunder. The provisions of this Agreement are severable and any determination of invalidity or unenforceability of any one provision hereof shall have no bearing on the continuing force and effect of the remaining valid provisions thereof.
THE COURTS OF THE STATE OF TEXAS IN HOUSTON, TEXAS SHALL HAVE EXCLUSIVE JURISDICTION TO ADJUDICATE ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT. EACH PARTY HEREBY CONSENTS TO THE JURISDICTION OF SUCH COURTS AND WAIVES ANY RIGHT IT MAY OTHERWISE HAVE TO CHALLENGE THE APPROPRIATENESS OF SUCH FORUMS, WHETHER ON THE BASIS OF THE DOCTRINE OF FORUM NON- CONVENIENS OR OTHERWISE. EVEN IF APPLICABLE LAW PERMITS CLASS ACTIONS, YOU WAIVE ANY RIGHT TO PURSUE ON A CLASS BASIS ANY CONTROVERSY OR CLAIM AGAINST US, OR ANY OF OUR AFFILIATES OR PREDECESSORS IN INTEREST, AND WE WAIVE ANY RIGHT TO PURSUE ON A CLASS BASIS ANY SUCH CONTROVERSY OR CLAIM AGAINST YOU.
32. Disclaimer of All Warranties
EXCEPT AS SET FORTH HEREIN, THE SERVICES ARE PROVIDED TO YOU ON AN "AS IS" AND "AS AVAILABLE" BASIS AND YOUR USE OF THE SERVICES IS ENTIRELY AT YOUR OWN RISK. YOU UNDERSTAND THAT THE SERVICES MAY INCLUDE OR REFLECT DATA OR SERVICES OF THE SERVICE PROVIDERS. EXCEPT AS SET FORTH HEREIN, LICENSOR, ITS AFFILIATES AND THE SERVICE PROVIDERS MAKE NO WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICES, INCLUDING WITHOUT LIMITATION THE ACCESS, SPEED OR AVAILABILITY THEREOF, ACCURACY OF THE INFORMATION, CONTENT OR OTHER MATERIAL PROVIDED OR MADE AVAILABLE HEREUNDER, INCLUDING ANY WARRANTIES OF MERCHANTABILITY FITNESS FOR A PARTICULAR PURPOSE, OR INFRINGEMENT. ALL SUCH WARRANTIES ARE EXPRESSLY EXCLUDED. LICENSEE UNDERSTANDS AND AGREES THAT ANY SOFTWARE IS PROVIDED WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH THE USER. THERE IS NO WARRANTY AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF ANY INFORMATION PROVIDED HEREUNDER OR AGAINST INFRINGEMENT.
33. Limitation of Liability and Indemnification
(i). NOTWITHSTANDING ANYTHING CONTAINED HEREIN, NONPERFORMANCE HEREUNDER BY THE SERVICE PROVIDERS SHALL BE EXCUSED IF CAUSED BY ACTS OF GOD, TERRORIST ACTIVITIES, NATURAL DISASTERS, STRIKES; BY ACTS OR OMISSIONS OF A THIRD PARTY SERVICE PROVIDER INCLUDING EMERGENCY SERVICE PROVIDERS; BY EQUIPMENT FAILURE OR FACILITY SHORTAGE; BY PROBLEMS CAUSED BY YOU OR BY ANY THIRD PARTY; BY ANY OBSTRUCTIONS, NETWORK, CONGESTION OR ATMOSPHERIC CONDITIONS; OR BY ANY OTHER CAUSE BEYOND THE SERVICE PROVIDERS CONTROL. LICENSEE HEREBY RELEASES LICENSOR AND ITS AFFILIATED COMPANIES AS THEY MAY EXIST FROM TIME TO TIME (EACH, A "MESHWORKSCORPORATION"), THEIR AFFILIATES AND THE SERVICE PROVIDERS, AND ALL OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AND AGENTS OF ANY AND ALL LIABILITIES WITH RESPECT TO THE SERVICES PROVIDED HEREIN OTHER THAN ANY LIABILITIES CAUSED BY GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF MESHWORKS L.L.C. FURTHERMORE, LICENSEE RELEASES ANY AND ALL CLAIMS FOR ECONOMIC OR CONSEQUENTIAL DAMAGES.
(ii). THE MESHWORKS MEDIA CORPORATION COMPANIES, THEIR AFFILIATES AND THE SERVICE PROVIDERS MAXIMUM LIABILITY TO YOU OR ANYONE CLAIMING BY OR THROUGH YOU UNDER ANY THEORY (INCLUDING BUT NOT LIMITED TO FRAUD, MISREPRESENTATION, BREACH OF CONTRACT, PERSONAL INJURY, PRODUCTS LIABILITY, OR FAILURE TO WARN) SHALL NOT EXCEED THE CHARGES INCURRED BY YOU FOR THE SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING ACCRUAL OF SUCH CAUSE OF ACTION. THE LIABILITY OF LICENSOR, ITS AFFILIATES AND THE SERVICE PROVIDERS FOR ANY MISTAKE, OMISSION, INTERRUPTION, DELAY, ERROR, DEFECT, UNAUTHORIZED ACCESS, THEFT, OR OTHER FAILURE IN THE SERVICES FURNISHED SHALL IN NO EVENT EXCEED THE AMOUNT OF THE PRORATED YEARLY CHARGES THAT WOULD HAVE BEEN PAYABLE BY YOU DURING THE PERIOD SO AFFECTED, PROVIDED THAT NO LIABILITY SHALL RESULT FOR OUTAGES OF TWENTY-FOUR (24) HOURS OR LESS. TO RECEIVE CREDIT, YOU MUST NOTIFY LICENSOR IN WRITING AT THE ADDRESS ABOVE WITHIN SIXTY (60) DAYS AFTER THE TIME WHEN THE INTERRUPTION STARTED. ANY CAUSE OF ACTION YOU OR ANYONE CLAIMING BY OR THROUGH YOU MAY HAVE WITH RESPECT TO THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CLAIM OR CAUSE OF ACTION ARISES.
(iii). BY ENTERING INTO THIS AGREEMENT, YOU ARE WAIVING IMPORTANT RIGHTS. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, YOU AGREE THAT THE MESHWORKSCORPORATION COMPANIES, THEIR AFFILIATES AND THE SERVICE PROVIDERS WILL NOT BE RESPONSIBLE TO YOU OR ANY THIRD PARTIES UNDER ANY CIRCUMSTANCES FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, TREBLE, OR EXEMPLARY DAMAGES OR LOSSES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFIT, LOSS OF USE OF ANY PROPERTY, LOSS OF GOOD WILL, COST OF SUBSTITUTE EQUIPMENT OR SERVICES, DOWNTIME COSTS, ATTORNEYS' FEES, OR ANY OTHER CLAIMS OF LICENSEE RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE SERVICES PROVIDED HEREUNDER, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, EVEN IF ANY OR ALL OF THE SERVICE PROVIDERS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU. IF ANY LIMITATIONS DO NOT APPLY, THE BALANCE OF THIS AGREEMENT SHALL BE UNAFFECTED AND SHALL REMAIN ENFORCEABLE. YOU UNDERSTAND THAT IF YOU BECOME DISSATISFIED WITH THE SERVICES, YOU’RE SOLE AND EXCLUSIVE REMEDY WILL BE TO DISCONTINUE THE SERVICES IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
(iv). YOU SHALL INDEMNIFY AND HOLD HARMLESS THE MESHWORKS MEDIA CORPORATION COMPANIES, THEIR AFFILIATES AND THE SERVICE PROVIDERS, THEIR OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AND AGENTS FROM AND AGAINST ANY CLAIMS, IRRESPECTIVE OF THE NATURE OF THE CAUSE OF THE CLAIMS, ALLEGING LOSS, COSTS, EXPENSES, DAMAGES OR INJURIES (INCLUDING INJURIES RESULTING IN DEATH) ARISING OUT OF OR IN CONNECTION WITH (1) YOUR BREACH OF THESE TERMS & CONDITIONS WHETHER BROUGHT BY YOU, YOUR EMPLOYEES OR THIRD PARTIES; (2) YOUR ACTS OR OMISSIONS IN CONNECTION WITH THIS AGREEMENT; OR (3) YOUR USE OR YOUR FAILURE OR INABILITY TO USE THE SERVICES, EXCEPT WHERE SUCH CLAIMS RESULT FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY OF THE SERVICE PROVIDERS. IN THE EVENT YOU HAVE AUTHORIZED US TO CHARGE AMOUNTS DUE AGAINST YOUR CREDIT CARD ACCOUNT, THE INDEMNIFICATION AND HOLD HARMLESS AGREEMENT CONTAINED IN THIS PARAGRAPH SHALL EXTEND TO CLAIMS, EXPENSES, LIABILITIES AND DAMAGES ARISING IN CONNECTION WITH USE OR OWNERSHIP OF THE CREDIT CARD ACCOUNT OR FROM THE ISSUER'S REFUSAL TO PAY AMOUNTS CHARGED TO SUCH CREDIT CARD ACCOUNT.
(v.) YOU SHALL INDEMNIFY AND HOLD HARMLESS THE MESHWORKSCORPORATION COMPANIES, THEIR AFFILIATES AND THE SERVICE PROVIDERS, THEIR OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AND AGENTS FROM AND AGAINST ANY CLAIMS, IRRESPECTIVE OF THE NATURE OF THE CAUSE OF THE CLAIMS, ALLEGING LOSS, COSTS, EXPENSES, DAMAGES OR INJURIES (INCLUDING INJURIES RESULTING IN DEATH) ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THIRD PARTY SERVICES OR PRODUCTS ADVERTISED OR OFFERED BY WAY OF THE WEBSITE, RELATED WEBSITES, SERVICES OR OTHER MOBILE SERVICES.
BREACH OF THESE TERMS & CONDITIONS WHETHER BROUGHT BY YOU, YOUR EMPLOYEES OR THIRD PARTIES; (2) YOUR ACTS OR OMISSIONS IN CONNECTION WITH THIS AGREEMENT; OR (3) YOUR USE OR YOUR FAILURE OR INABILITY TO USE THE SERVICES, EXCEPT WHERE SUCH CLAIMS RESULT FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY OF THE SERVICE PROVIDERS. IN THE EVENT YOU HAVE AUTHORIZED US TO CHARGE AMOUNTS DUE AGAINST YOUR CREDIT CARD ACCOUNT, THE INDEMNIFICATION AND HOLD HARMLESS AGREEMENT CONTAINED IN THIS PARAGRAPH SHALL EXTEND TO CLAIMS, EXPENSES, LIABILITIES AND DAMAGES ARISING IN CONNECTION WITH USE OR OWNERSHIP OF THE CREDIT CARD ACCOUNT OR FROM THE ISSUER'S REFUSAL TO PAY AMOUNTS CHARGED TO SUCH CREDIT CARD ACCOUNT.
(vi). YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOU HAVE NO CONTRACTUAL RELATIONSHIP WHATSOEVER WITH THE SOFTWARE OR INTERNET OR CELLULAR COMMUNICATIONS PROVIDERS (COLLECTIVELY "OUR SUPPLIERS") AND THAT YOU ARE NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN US AND THE SUPPLIERS. IN ADDITION, YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE SUPPLIERS SHALL HAVE NO LEGAL, EQUITABLE, OR OTHER LIABILITY OF ANY KIND TO YOU, AND YOU HEREBY WAIVE ANY AND ALL CLAIMS OR DEMANDS THEREFOR.
(vii). YOU AGREE NOT TO MAKE, AND TO WAIVE TO THE FULLEST EXTENT ALLOWED BY LAW, ANY CLAIM FOR DAMAGES OTHER THAN DIRECT, COMPENSATORY DAMAGES AS LIMITED ABOVE. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY. IF ANY LIMITATIONS DO NOT APPLY, THE BALANCE OF THIS AGREEMENT SHALL BE UNAFFECTED AND SHALL REMAIN ENFORCEABLE.
(viii). THE LIMITATIONS OF LIABILITY AND INDEMNITIES APPLY TO CLAIMS MADE BY YOU, YOUR GUESTS, YOUR EMPLOYEES, YOUR CUSTOMERS, YOUR HEIRS AND ASSIGNS, AND ANY THIRD PARTIES MAKING CLAIMS HEREUNDER AND SURVIVE TERMINATION OF THIS AGREEMENT.
34. Force Majeure
The MESHWORKS MEDIA CORPORATION Companies, their Affiliates and Service Providers shall not be liable for and will not be responsible to Licensee for any delay or failure to perform under this Agreement if such delay or failure results from fire, explosion, labor dispute, earthquake, hurricane, casualty or accident, lack or failure of transportation facilities and/or services, lack of failure or telecommunications facilities and/or services including Internet services and satellite services, vandalism, epidemic, flood, drought, or by reason of national emergency, war, terrorism, revolution, civil commotion, blockade, or embargo, delay from suppliers, Act of God, any inability to obtain any requisite license, permit or authorization, or by reason of any law, proclamation, regulation, ordinance, demand or requirement of any government or by reason of any other cause whatsoever, whether similar or dissimilar to those enumerated, beyond the reasonable control of the MESHWORKS MEDIA CORPORATION Companies, their Affiliates and Service Providers.
Licensee may not assign this Agreement or any rights hereunder nor delegate its duties without Licensor’s prior written consent. Any purported assignment or delegation shall be void. Notwithstanding the preceding, Licensor may assign this Agreement in its entirety without Licensee’s consent. Subject to the provisions of this section, this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns, if any, of the parties hereto.
36.Third Party Beneficiary
Nothing contained herein will be deemed to create any third party beneficiaries or confer any benefit or rights on or to any person not a party hereto, and no person not a party hereto shall be entitled to enforce any provisions hereof or exercise any rights hereunder, except that any Service Provider shall be a third party beneficiary and may enforce the provisions of this Agreement.
37. Complaints and Abuse
Any complaints or objections in relation to images, sounds, messages, text, service or other content and material that may be posted by a Member or Service Provider or hosted in connection with the Services, which is deemed unsuitable for minors and that may be objectionable to many adults, should be directed to the following applicable address: MeshWorks Media Corporation, 2600 South Shore Blvd Suite 100, Houston, Texas 77573, U.S.A., Attention:, Client Services OR via e-mail to email@example.com
This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. This Agreement supersedes any oral or written communications, if any, between the parties. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to affect the intent of the Agreement, and the remainder of this Agreement shall continue in full force and effect.