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Blue Note Web Services Terms of Service and Acceptable Use Policy
Updated March 7, 2005
Refunds
Blue Note Web Services offers a money-back guarantee on
hosting services. If at any time during the first 30 days of service
you are dissatisfied with the hosting provided by Blue Note Web
Services, you may cancel your service and receive a refund. This
offer is null and void if you have violated our Terms of Service or
Acceptable Usage Policy.
Blue Note Web Services Terms &
Conditions Agreement
1. Term and Payment for Services
2.
Use of Services
3. Enforcement
4. Intellectual Property
Rights
5. Warranty; Warranty Disclaimer
6. Limitation and
Exclusion of Liability
7. Indemnification
8.
Miscellaneous
Your use of services provided by Blue Note Web
Services indicates your agreeance to abide by the Terms of Service
and Acceptable Useage Policies of Blue Note Web Services.
NOTWITHSTANDING,
BY USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS
AGREEMENT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED
HEREIN AS WELL AS ALL ACCEPTABLE USE POLICIES INCORPORATED BY
REFERENCE.
Blue Note Web Services reserves the right to change
or modify any of the terms and conditions contained in this
Agreement, any Addendum and any policy or guideline incorporated by
reference at any time and from time to time in its sole discretion,
and to determine whether and when any such changes apply to both
existing or future customers. Any changes or modification will be
effective upon posting of the revisions on the Blue Note Web Services
Web site (the "Site") at http://www.bluenoteweb.com. It is
your responsibility to monitor this site for changes. Your continued
use of Services following Blue Note Web Services posting of any
changes or modifications will constitute your acceptance of such
changes or modifications.
1. TERM AND PAYMENT FOR
SERVICES
1.1. Term
This Agreement shall be
for an "Initial Term" as chosen by you in the Order Form
located on this Site at the time you register for the Services. This
Agreement will be automatically renewed (the "Renewal Term")
at the end of the Initial Term for the same period as the Initial
Term unless you provide Blue Note Web Services with notice of
termination thirty (30) days prior to the end of the Initial Term or
the Renewal Term.
1.2. Termination Policy
If
you terminate your receipt of the Services prior to the end of the
Initial Term or the Renewal Term, whichever is then applicable, (a)
Blue Note Web Services will not refund to you any fees paid in
advance of such termination and (b) you shall be required to pay 100%
of Blue Note Web Services' standard monthly charge for each month
remaining in the term, unless otherwise expressly provided in this
Agreement. Notwithstanding the foregoing, if you terminate your
receipt of Shared Hosting Services prior to the end of the first
thirty (30) days of the Initial Term, you are entitled to a refund of
the fees you paid in advance for the monthly Services, not including
any setup fees. Your termination request or notice must be submitted
to Blue Note Web Services in the manner described in Section 1.1.
Blue Note Web Services may terminate this Agreement at any time and
for any reason by providing to you written notice thirty (30) days
prior to the date of termination. If Blue Note Web Services
terminates this Agreement, Blue Note Web Services will refund to you
the pro-rata portion of prepaid fees attributable to Services
(excluding setup fees) not yet rendered as of the termination date
unless otherwise expressly provided in this Agreement.
1.3
Default and Cure
In the event that either party hereto
defaults in the performance of any of its material duties or
obligations under this Agreement, including failure to make any
payments due under this Agreement, and such default is not cured
within five (5) days after written notice is given to the defaulting
party specifying the default, then the party not in default, after
given written notice thereof to the defaulting party, may terminate
this Agreement.
1.4. Charges
You agree to pay
for all charges attributable to your use of the Services at the then
current Blue Note Web Services prices, which shall be exclusive of
any applicable taxes. You are responsible for the payment of all
federal, state, and local sales, use, value added, excise, duty and
any other taxes assessed with respect to the Services, other than
taxes based on Blue Note Web Services' net income.
1.5.
Payment
All charges for Services must be paid in advance
according to the then current prices applicable to the Services. Upon
entering this Agreement, you may choose to pay by direct charge to a
credit or debit card. If you choose to pay by credit or debit card
upon registering for the Services, you thereby authorize Blue Note
Web Services to charge your credit or debit card to pay for any
charges that may apply to your account. You must notify Blue Note Web
Services of any changes to your card account (including, without
limitation, applicable account number or cancellation or expiration
of the account), your billing address, or any information that may
prohibit Blue Note Web Services from charging your account. If you
choose to pay by other methods, it is your responsibility to ensure
that payment is received at the Blue Note Web Services offices or
credited to a Blue Note Web Services account by the due date on your
invoice. Blue Note Web Services may also create periodic invoices for
any applicable Supplemental Charges associated with your use of the
Services. You agree to pay to Blue Note Web Services the amount
indicated in each invoice by the due date reflected on that invoice.
If you fail to pay any fees and taxes by the applicable due date for
credit card or invoice payments, late charges of the lesser of
fifteen per cent (15%) of your overdue charges per month or the
maximum allowable under applicable law but at no time less than $15
shall also become payable by you to Blue Note Web Services . In
addition, your failure to fully pay any fees and taxes within five
(5) days after the applicable due date will be deemed a material
breach of this Agreement, and Blue Note Web Services may, in addition
to any other remedy it may have: (i) suspend its performance of the
Services and/or terminate this Agreement; and/or (ii) At the time of
such nonpayment, delete any and all content from the Blue Note Web
Services Servers. Any such suspension or termination of the Services
would not relieve you from paying past due fees plus interest. In the
event of collection enforcement, you will be liable for any costs
associated with such collection, including, without limitation,
reasonable attorneys' fees, court costs and collection agency fees.
1.6. Other Services
Blue
Note Web Services offers additional services for additional fees.
These services may include site development or maintenance, graphics
design, search engine optimization (SEO), off-site backups of program
files or databases, server management, etc. These services are
available under contracts and agreements not included within this
document. Unless you request otherwise, fees for these services will
be billed with your regular hosting. If any other services are billed
with your hosting services, the terms and conditions in sections 1.1
to 1.5 (including due dates, late fees, etc) of this document will
apply to all monies owed in relation to such services.
2.
USE OF SERVICES
2.1. Applicable Use Policy
The
Blue Note Web Services Acceptable Use Policy (the "Usage
Policy") governs the general policies and procedures for use of
the Services. The Usage Policy is posted on Blue Note Web Services'
Web site (or such other location as Blue Note Web Services may
specify) and may be updated from time-to-time. YOU SHOULD CAREFULLY
READ THE USAGE POLICY. BY USING THE SERVICES, YOU AGREE TO BE BOUND
BY THE TERMS OF THE USAGE POLICY AND ANY MODIFICATIONS. Blue Note Web
Services RESERVES THE RIGHT TO TERMINATE YOUR ACCOUNT FOR ANY
VIOLATION OF THE USAGE POLICY OR THIS AGREEMENT.
2.2.
Material and Product Requirements
Unless we have agreed
otherwise in a separate agreement, you must ensure that all material
and data placed on Blue Note Web Services' equipment is in a
condition that is "server-ready," which is in a form
requiring no additional manipulation by Blue Note Web Services . Blue
Note Web Services will make no effort to validate any of this
information for content, correctness or usability. If your material
is not "server-ready", Blue Note Web Services has the
option at any time to reject this material. Blue Note Web Services
will notify you of its refusal of the material and afford you the
opportunity to amend or modify the material to satisfy the needs
and/or requirements of Blue Note Web Services . Use of the Services
requires a certain level of knowledge in the use of Internet
languages, protocols and software. This level of knowledge varies
depending on the anticipated use and desired content of your Web
site. You must have the necessary knowledge to create and maintain a
Web site. It is not Blue Note Web Services 's responsibility to
provide this knowledge or customer support outside of the Services
agreed to by you and Blue Note Web Services .
2.3.
Bandwidth and Storage Usage
You agree that use of the
Services under this Agreement will not exceed the bandwidth and
storage usage limits set out. If you use any bandwidth or storage
space in excess of the agreed upon number of megabytes per month, you
agree to pay the associated additional charges.
2.4.
Domain Registration Fees are Non-Refundable.
All fees are due
at the time of registration and are non-refundable, in whole or in
part, even if the domain name registration is suspended, cancelled or
transferred prior to the end of the registration term. Once a domain
name is registered, it can not be altered, including spelling
corrections.
2.5. Lawfulness
All services provided
by Blue Note Web Services may be used for lawful purposes only.
Transmission, storage, or presentation of any information, data or
material in violation of any United States Federal, State or City law
is prohibited. This includes, but is not limited to: copyrighted
material, material we judge to be threatening or obscene, or material
protected by trade secret and other statute. Our acceptable use
policy is actively and strictly enforced. Offending content or users
are suspended from our network, usually as soon as they are
discovered, although we will always inform you when and why any
action has been taken.
2.6.
Pornography is prohibited on all Blue Note Web Services servers
This
includes sites that include sexually explicit or hardcore images
and/or advertising. If you think your site may violate our Terms Of
Service, please ask us before signing up for an account so that we
may determine if we can host your site. Blue Note Web Services
reserves the right to determine what is and what isn't acceptable for
our servers. If child pedophiliac material (pedo hard pics) are found
on user/customers account the account will be immediately deleted and
user fines up to US $500.00 will be charged.
2.7. Undesirable Content
Certain
types of content are not allowed on our network. We do not host adult
content of any description. Content relating to Hacking, Cracking,
Warez and IRC is not allowed. Software downloads may only be hosted
if you are the writer and copyright owner of the software or have
proof of distribution rights (ie, software licensed under the GPL or
similar licenses). Audio and video downloads may be offered only if
you have the distribution rights. Blue Note Web Services may, at any
time, request proof of distribution rights for software, audio, video
or any other content residing in the hosting space provided on our
servers. Such proof must be provided within 24 hours of its request,
otherwise adverse action may be taken against your account. Offending
content or users are suspended from our network, usually as soon as
they are discovered, although we will always inform you when and why
any action has been taken. Accounts suspended due to content or AUP
violation are not refunded under any circumstances.
2.8.
CGI Scripts:
Each account comes with its own cgi-bin. You are
free to use any CGI scripts you wish, however we reserve the right to
disable any CGI script that effects normal server operation without
prior warning.
2.9.
Banned Scripts :
The following scripts are banned from use on
our servers and may not be uploaded or run. This list is not
all-inclusive and may be updated at any time. Reasons for banning
them include adverse effects on server load, invitations to
hackers/spammers/criminal activity, etc.
IRC
egg drops
Proxy servers
Mail bombers
Anonymous mailers
IP
spoofers
Port scanners
nph-proxy
UBB (Ultimate Bulletin
Board, all versions)
Ikonboard, Yabb (all
versions)
lstmrge.cgi
FormMail.cgi, FormMail.pl from Matt's
Script Archive are not allowed. See Here
2.10. Background
Running Programs:
Background daemons in general are
prohibited, we will consider requests on an individual basis. If
allowed extra charges will be assessed based on resources or system
maintenance needed.
2.11. IRC:
We currently do not
allow IRC or IRC bots to be operated on our servers.
2.12.
Backup:
Blue Note Web Services provides backups for content
hosted in its servers. Backups are carried out on a daily basis by
our datacenter. By accepting this agreement you agree not to hold
Blue Note Web Services responsible for the content (or lack thereof)
contained in the daily backups.
2.13.
Commercial Advertising - Email:
Our servers may not be the
source, intermediary, or destination address involved in the
transmission of spam, flames, or mail bombs. Your domain may not be
referenced as originator, intermediary, or reply-to address in any of
the above. SPAM /illegal content advertising sites on other servers
which in turn contain links to a domain on our servers is prohibited.
We consider spam any mass unsolicited message in the mediums of
Newsgroups and Email. If you are found to have spammed, then we will
immediately, without warning, disable your domain. In addition, we
will impose a $100 penalty for each spam policy violation. Penalty
for subsequent violations will be higher. We reserve the right to
refuse or cancel service to known spammers. Lastly, we reserve the
right to determine what violates this policy. As such, any violation
will result in immediate deactivation of services without refund.
2.14. Excessive Database Use
You may not use database services provided by Blue Note Web Services in a manner that is likely to cause undue stress on the database server. This includes, but is not limited to:
2.15. Server Abuse
Any attempts to undermine or cause harm to a server is strictly prohibited.
3.
ENFORCEMENT
3.1. Investigation of Violations
Blue
Note Web Services may investigate any reported or suspected violation
of this Agreement, its policies or any complaints and take any action
that it deems appropriate and reasonable under the circumstance to
protect its systems, facilities, customers and/or third parties. Blue
Note Web Services retains the right to access or review the contents
of any e-mail or similar stored electronic communications. Blue Note
Web Services does not accept any obligation to review communications,
content or any other information stored within the server except as
mandated by law.
3.2. Actions
Blue Note Web
Services reserves the right and has absolute discretion to restrict
or remove from its servers any content that violates this Agreement
or related policies or guidelines, or is otherwise objectionable or
potentially infringing on any third party's rights or potentially in
violation of any laws. If we become aware of any possible violation
by you of this Agreement, any related policies or guidelines, third
party rights or laws, Blue Note Web Services may immediately take
corrective action, including, but not limited to, (a) issuing
warnings, (b) suspending or terminating the Service, (c) restricting
or prohibiting any and all uses of content hosted on Blue Note Web
Services 's systems, and/or (d) disabling or removing any hypertext
links to third party Web sites, any of your content distributed or
made available for distribution via the Services, or other content
not supplied by Blue Note Web Services which, in Blue Note Web
Services 's sole discretion, may violate or infringe any law or
third-party rights or which otherwise exposes or potentially exposes
Blue Note Web Services to civil or criminal liability or public
ridicule. It is Blue Note Web Services 's policy to terminate repeat
infringers. Blue Note Web Services' right to take corrective action,
however, does not obligate us to monitor or exert editorial control
over the information made available for distribution via the
Services. If Blue Note Web Services takes corrective action due to
such possible violation, Blue Note Web Services shall not be
obligated to refund to you any fees paid in advance of such
corrective action.
3.3. Disclosure Rights
To
comply with applicable laws and lawful governmental requests, to
protect Blue Note Web Services 's systems and customers, or to ensure
the integrity and operation of Blue Note Web Services 's business and
systems, Blue Note Web Services may access and disclose any
information it considers necessary or appropriate, including, without
limitation, user profile information (i.e., name, e-mail address,
etc.), IP addressing and traffic information, usage history, and
content residing on Blue Note Web Services' servers and systems. Blue
Note Web Services also reserves the right to report any activity that
it suspects violates any law or regulation to appropriate law
enforcement officials, regulators, or other appropriate third
parties.
4. INTELLECTUAL PROPERTY RIGHTS
4.1.
Your License Grant to Blue Note Web Services
You hereby
grant to Blue Note Web Services a non-exclusive, worldwide, and
royalty-free license for the Initial Term and any Renewal Term to use
your content as necessary for the purposes of rendering and operating
the Services to you under this Agreement. You expressly (a) grant to
Blue Note Web Services a license to cache materials distributed or
made available for distribution via the Services, including content
supplied by third parties, and (b) agree that such caching is not an
infringement of any of your intellectual property rights or any third
party's intellectual property rights, but is in fact necessary to
effectively render the services you have requested.
4.2.
Blue Note Web Services Materials and Intellectual Property
All
materials, including but not limited to any computer software (in
object code and source code form), data or information developed or
provided by Blue Note Web Services or its suppliers or agents
pursuant to this Agreement, and any know-how, methodologies,
equipment, or processes used by Blue Note Web Services to provide the
Services to you, including, without limitation, all copyrights,
trademarks, patents, trade secrets and other proprietary rights are
and will remain the sole and exclusive property of Blue Note Web
Services or its suppliers, including but not limited to any software
programs, inventions, products and/or technology innovations and
methodologies utilized, developed, or disclosed by Blue Note Web
Services during the term of this Agreement. Unauthorized copying,
reverse engineering, decompiling, and creating derivative works based
on the any such software is expressly forbidden except as permitted
in this Agreement. You may be held legally responsible for violation
of any patent rights, copyright or trade secret rights that is caused
or encouraged by failure to abide by the terms of this
Agreement.
4.3. Trademarks
You hereby grant to
Blue Note Web Services a limited right to use your trademarks, if
any, for the limited purpose of permitting Blue Note Web Services to
fulfill its duties under this Agreement. This is not a trademark
license and no other rights relating to the trademarks are granted by
this Agreement. Specifically, but without limitation, the rights
granted by this Agreement do not include the right to sub-license use
of your trademarks or to use your trademarks with any other products
or services outside the scope of the Services provided under this
Agreement. The limited trademark use rights granted under this
section terminate upon termination of this Agreement.
5.
WARRANTY; WARRANTY DISCLAIMER
5.1. Customer and/or
Third Party Acts
Blue Note Web Services is not responsible
in any manner for any non-confirming Services to the extent caused by
you or your customers. In addition, Blue Note Web Services is not
responsible for loss or corruption of data in transmission, or for
failure to send or receive data due to events beyond Blue Note Web
Services' reasonable control.
5.2. No Express or Implied
Warranty
ALL SERVICES, SYSTEMS AND PRODUCTS PROVIDED BY
Blue Note Web Services UNDER THIS AGREEMENT ARE PROVIDED WITHOUT ANY
EXPRESS OR IMPLIED WARRANTY IN FACT OR IN LAW, WHATSOEVER. YOU
ACKNOWLEDGE AND AGREE THAT Blue Note Web Services EXERCISES NO
CONTROL OVER, AND ACCEPTS NO RESPONSIBILITY FOR, THE CONTENT OF THE
INFORMATION PASSING THROUGH Blue Note Web Services' COMPUTERS,
NETWORK HUBS AND POINTS OF PRESENCE, OR THE INTERNET. Blue Note Web
Services DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES WILL BE
UNINTERRUPTED OR ERROR-FREE, OR COMPLETELY SECURE, AND DOES NOT MAKE
ANY WARRANTIES WITH RESPECT TO PATENT, COPYRIGHT, TRADE SECRET OR
TRADEMARK INFRINGEMENT. ALL SERVICES PERFORMED UNDER THIS AGREEMENT
ARE PERFORMED "AS IS" AND WITHOUT WARRANTY AGAINST FAILURE
OF PERFORMANCE INCLUDING, WITHOUT LIMITATION, ANY FAILURE DUE TO
COMPUTER HARDWARE OR COMMUNICATION SYSTEMS. EXCEPT AS EXPRESSLY
PROVIDED IN THIS AGREEMENT, Blue Note Web Services DOES NOT MAKE AND
HEREBY DISCLAIMS, AND YOU HEREBY WAIVE ALL RELIANCE ON, ANY
REPRESENTATIONS OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING
THE SERVICES, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR CONDITIONS OF
QUALITY, AND ANY WARRANTIES WITH RESPECT TO PATENT, COPYRIGHT,
TRADESECRET OR TRADEMARK INFRINGEMENT.
5.3 Your Warranties
and Representations to Blue Note Web Services
You warrant,
represent, and covenant to Blue Note Web Services that (a) you are at
least eighteen (18) years of age or are a duly organized and validly
existing entity; (b) you possess the legal right and ability to enter
into this Agreement; (c) you will use the Services only for lawful
purposes and in accordance with this Agreement and all applicable
policies and guidelines; (d) you will be financially responsible for
the use of your account; (e) you have acquired or will acquire all
authorization(s) necessary for hypertext links to third-party Web
sites or other content; (f) you have verified or will verify the
accuracy of materials distributed or made available for distribution
via the Services, including, without limitation, your content,
descriptive claims, warranties, guarantees, nature of business, and
address where business is conducted, and (g) your content and/or any
software that you install or provide does not and will not infringe
or violate any right of any third party (including any intellectual
property rights) or violate any applicable law, regulation or
ordinance.
6. LIMITATION AND EXCLUSION OF LIABILITY
6.1. Limitations
IN NO EVENT SHALL Blue Note
Web Services HAVE ANY LIABILITY WHATSOEVER FOR DAMAGE, UNAUTHORIZED
ACCESS TO, ALTERATION, THEFT OR DESTRUCTION OF INFORMATION PROVIDED
TO Blue Note Web Services , DISTRIBUTED OR MADE AVAILABLE FOR
DISTRIBUTION VIA THE SERVICES. Blue Note Web Services SHALL HAVE NO
LIABILITY UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL,
EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF Blue Note
Web Services HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN
ANY EVENT, THE LIABILITY OF Blue Note Web Services TO YOU FOR ANY
REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT
ACTUALLY PAID TO Blue Note Web Services BY YOU UNDER THIS AGREEMENT
DURING THE THIRTY (30) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH
SUCH CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION
IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH OF
CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY,
MISREPRESENTATIONS, AND OTHER TORTS. THE FEES FOR THE SERVICES SET BY
Blue Note Web Services UNDER THIS AGREEMENT HAVE BEEN AND WILL
CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY, YOU
HEREBY RELEASE Blue Note Web Services FROM ANY AND ALL OBLIGATIONS,
LIABILITIES, AND CLAIM IN EXCESS OF THE LIMITATION STATED IN THIS
SECTION 6.1. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR
LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN
SUCH STATES, OUR LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY
LAW.
6.2. Interruption of Service
You hereby
acknowledge and agree that Blue Note Web Services will not be liable
for any temporary delay, outages or interruptions of the Services.
Further, Blue Note Web Services shall not be liable for any delay or
failure to perform its obligations under this Agreement, where such
delay or failure results from any act of God or other cause beyond
its reasonable control (including, without limitation, any
mechanical, electronic, communications or third-party supplier
failure).
6.3. Maintenance
You hereby
acknowledge and agree that Blue Note Web Services reserves the right
to temporarily suspend services for the purposes of maintaining,
repairing, or upgrading its systems and network. Blue Note Web
Services will use best efforts to notify you of pending maintenance
however at no time is under any obligation to inform you of such
maintenance.
7. INDEMNIFICATION
You will
defend, indemnify and hold harmless Blue Note Web Services and its
officers, directors, shareholders, employees, consultants, agents,
affiliates and suppliers (an "Indemnitee") from any and all
threatened or actual claims, demands, causes of action, suits,
proceedings (formal or informal), losses, damages, fines, penalties,
liabilities, costs and expenses of any nature, including attorneys'
fees and court costs, sustained or incurred by or asserted against
any Indemnitee by any person, firm, corporation, governmental
authority, partnership or other entity by reason of or arising out of
or relating to: (i) your violation or breach of any term, condition,
representation or warranty of this Agreement or any applicable policy
or guideline; (ii) your conduct, including but not limited to your
negligence, gross negligence, or willful misconduct; (iii) your use
of the Services, including any improper or illegal uses; (iv) any
claim by a former employee of yours whose employment has been or may
be terminated in connection with or as a result of the execution of
this Agreement and performance of the Services by Blue Note Web
Services ; or (v) any claim relating to your services or products, or
your installation and/or use of any third-party software, including
but not limited to advertising, product liability claims or
infringement of any trademark, copyright, patent, trade secrets or
nonproprietary right of a third party (including, without limitation,
defamation, libel, or violation of privacy or publicity).
8.
MISCELLANEOUS
8.1
Confidentiality
The parties each agree that all
Confidential Information (as defined below) communicated to it by the
other is done so in confidence and will be used only for the purposes
of this Agreement and will not be used to compete with the other
party or disclosed to any third party without the prior written
consent of the other party except as permitted under this Agreement.
"Confidential Information" means all information in any
form, including, without limitation, printed or verbal communications
and information stored in printed, optical or electromagnetic format,
which relates to the Services; or computer, data processing or
electronic commerce programs and software; electronic data processing
applications, routines, subroutines, techniques or systems;
information which incorporates or is based upon proprietary
information of either party; or information concerning business or
financial affairs, product pricing, financial conditions or
strategies, marketing, technical systems of either party; or any
information concerning customers or vendors of either party; or any
data exchange between a party and any customers or vendors.
Exceptions to Confidential Information include (1) information in the
public domain; (2) information developed independently by a party
without reference to information disclosed under this Agreement; or
(3) information received from a third party without restriction
and/or breach of this or a similar Agreement. It is not a violation
of this provision to disclose Confidential Information in compliance
with any legal, accounting or regulatory requirement beyond the
control of either Party or, but in such case, prior to disclosure,
the disclosing Party shall give written notice to the other Party to
permit that Party an opportunity to challenge such disclosure. If
either Party is subpoenaed, such Party shall give written notice to
the other Party to permit that Party an opportunity to challenge the
disclosure of Confidential Information. Upon the termination of this
Agreement and upon written request of the disclosing Party, each
Party shall promptly return all Confidential Information of the other
Party. This provision shall survive the termination of this Agreement
for two (2) years.
8.2. Notices
All notices,
reports, requests, or other communications given pursuant to this
Agreement shall be made in writing, shall be delivered by hand
delivery, overnight courier service, fax, or electronic mail, shall
be deemed to have been duly given when delivered.
8.3.
Choice of Law and Forum
THIS AGREEMENT, WILL BE GOVERNED
BY THE LAWS OF THE UNITED STATES AND THE STATE OF TEXAS, WITHOUT
REFERENCE TO RULES GOVERNING CHOICE OF LAWS. ANY ACTION RELATING TO
THIS AGREEMENT MUST BE BROUGHT IN THE FEDERAL OR STATE COURTS LOCATED
IN TEXAS, AND YOU IRREVOCABLY CONSENT TO THE JURISDICTION OF SUCH
COURTS.
8.4. Entire Agreement
This Agreement
and all policies and guidelines incorporated in this Agreement by
reference constitutes the entire Agreement of the parties and may not
be modified or altered orally but only by an agreement in writing
signed by both parties.
8.5. No Fiduciary
Relationship
Blue Note Web Services is not the agent,
fiduciary, trustee or other representative of you. Nothing expressed
or mentioned in or implied from this Agreement is intended or shall
be construed to give to any person other than the parties hereto any
legal or equitable right, remedy or claim under or in respect to this
Agreement. This Agreement and all of the representations, warranties,
covenants, conditions and provisions hereof are intended to be and
are for the sole and exclusive benefit of the parties hereto.
8.6.
Assignments
You may not transfer or assign your rights,
duties, or obligations under this Agreement without Blue Note Web
Services' prior written consent. Blue Note Web Services may assign
its rights and obligations under this Agreement and may utilize
affiliate and/or agents in performing its duties and exercising its
rights under this Agreement, without your consent. Subject to that
restriction, this Agreement will be binding on, inure to the benefit
of, and be enforceable against the parties and their respective
successors and assignees.
8.7. No Waiver
Blue
Note Web Services' failure to enforce the strict performance of any
provision of this Agreement will not constitute a waiver of Blue Note
Web Services' right to subsequently enforce such provision or any
other provisions under this Agreement.
8.8. Severability
If any provision of this Agreement is deemed illegal,
invalid, void or otherwise unenforceable in whole or in part, that
provision shall be severed or shall be enforced only to the extent
legally permitted, and the remainder of the provision and the
Agreement shall remain in full force and effect. If any provision of
this Agreement is deemed to be invalid, void or unenforceable only
with respect to a particular application, such term or provision
shall remain in full force and effect with respect to all other
applications.
8.9. Survival
All provisions of
this Agreement relating to your warranties, intellectual property
rights, limitation and exclusion of liability, your indemnification
obligations and payment obligations shall survive the termination or
expiration of this Agreement.