This Internet Services Agreement (this “Agreement”) is made and entered into by and between The Music Bakery, 7522 Campbell Rd., Suite 113, Dallas, TX 75248 (the “Provider”), and You, Your heirs, agents, successors and assigns (“Client”) (each being referred to individually as a “Party” and collectively as the “Parties”), and is made effective as of the date of first payment by Client.
This Agreement shall remain in effect for one (1) month and shall automatically be renewed for additional one (1) month terms for as long as Client continues the monthly subscription.
1. Hosting Services
Provider agrees to provide Client with services for hosting of a website on the Internet (the “Website”).
2. Design Services
Provider agrees to provide Client with a website design matching the preferences of the Client to the greatest practicable extent given the limits of current website technologies and Provider capabilities.
3. Availability of Website
The Website shall be accessible to third Parties via the Internet twenty-four (24) hours a day, seven (7) days a week, except for scheduled maintenance and required repairs, and except for any loss or interruption of Hosting Services due to causes beyond the control of Provider or which are not reasonably foreseeable by Provider, including, but not limited to, interruption or failure of telecommunication or digital transmission links and Internet slow-downs or failures.
Client shall pay Provider the amount of $49.97 (tax included) per month by subscription via PayPal or Credit Card.
5. Site Design Revisions
Provider shall review all requests for revisions and determine, in consultation with Client, whether it can reasonably comply with such requests, and if so, and at its option, Provider shall propose a procedure and budget for complying with such request.
Provider represents and warrants that:
1. Provider has the power and authority to enter into and perform its obligations under this Agreement; and
2. Provider’s services under this Agreement shall be performed in a workmanlike manner.
Client represents and warrants that:
1. Client has the power and authority to enter into and perform its obligations under this Agreement;
2. Client Content does not and shall not contain any content, materials, advertising or services that are inaccurate or that infringe on or violate any applicable law, regulation or right of a third Party, including, without limitation, export laws, or any proprietary, contract, moral, or privacy right or any other third Party right, and that Client has the right to place the Client Content on the Website;
3. Client’s use of its Website will not violate any law or regulation of any governmental or regulatory/administrative entity; and,
4. Client has obtained any authorization(s) necessary for hypertext links from the Website to other third Party Websites. Should Client receive notice of a claim regarding the Website, Client shall promptly provide Provider with written notice of such claim.
Client represents and warrants that it shall not use the Website or the Services provided to Client to:
1. Send unsolicited mail messages, including the sending of “junk mail” or other advertising material to individuals who did not specifically request such material, who were not previous customers of CLIENT or with whom CLIENT does not have an existing business relationship (“Email spam”);
2. Engage in harassing behavior, whether through language, frequency or size of email message;
3. Use without authorization or forge email header information;
4. Solicit mail for any other email address other than that of the Client’s account with the intent to harass or to collect replies;
5. Create or forward “chain letters” or other “pyramid schemes” of any type; and/or,
6. Use unsolicited email originating from within Provider’s network or the networks of other Internet Service Providers.
Client agrees to indemnify, defend, and hold harmless Provider, its directors, officers, employees and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, at trial and on appeal, to the extent that such action is based upon a claim that:
1. If true, would constitute a breach of any of Client’s representations, warranties, or agreements hereunder;
2. Arises out of the negligence or willful misconduct of Client; or,
3. Any of the Client Content to be provided by Client hereunder or other material on the Website infringes or violates any rights of third Parties; including, without limitation, rights of publicity, rights of privacy, patents, copyrights, trademarks, trade secrets, and/or licenses.
Provider agrees to indemnify, defend, and hold harmless Client, its directors, officers, employees and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, at trial and on appeal, to the extent that such action arises out of the gross negligence or willful misconduct of Provider.
In claiming any indemnification hereunder, the indemnified Party shall promptly provide the indemnifying Party with written notice of any claim which the indemnified Party believes falls within the scope of the foregoing paragraphs. The indemnified Party may, at its own expense, assist in the defense if it so chooses, provided that the indemnifying Party shall control such defense and all negotiations relative to the settlement of any such claim and further provided that any settlement intended to bind the indemnified Party shall not be final without the indemnified Party’s written consent, which shall not be unreasonably withheld.
LIMITATION OF LIABILITY
PROVIDER SHALL HAVE NO LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, THE WEBSITE OR CLIENT’S DATA FILES, PROGRAMS OR INFORMATION THROUGH ACCIDENT, FRAUDULENT OR UNAUTHORIZED MEANS OR DEVICES. PROVIDER SHALL HAVE NO LIABILITY WITH RESPECT TO PROVIDER’S OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY OF PROVIDER TO CLIENT FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO PROVIDER BY CLIENT DURING THE MOST RECENT ONE-MONTH PERIOD UNDER THIS AGREEMENT. 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.
No amendment, waiver, or modification of this Agreement or any provision of this Agreement shall be valid unless in writing, stating with specificity the particular amendment or modification to be made, and duly executed by the Provider and Client.
If any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, administrative agency or as a result of future legislative action, such holding or action shall be strictly construed and the unenforceable provision shall be deemed severable from the remainder of the Agreement to the extent permitted by law, and the validity or effect of any other provision of this Agreement shall remain binding with the same effect as though the void parts were deleted.