2.8 Merchant will not provide a
third party with "space" on its web pages
for the display of any third-party advertising or
similar information. Doing so will cause Merchant to
be in breach of this Agreement, and TIAS will have the
right to close Merchant's shop without notice.
2.9 Provide only fine art/antiques
in their online catalog. Reproductions, collectables,
and pornographic material are not permitted in the
system
2.10 Assume responsibility for
basic operation of their computer and establishment of
an internet connection with a local ISP.
2.11 Provide payment by the 1st of
the billing month. If payment occurs after the 10th
of the month, client agrees to pay a $25 late
fee. Client agrees that if accounts are not settled by
the end of the billing month, their web hosting
service will be suspended and an additional $25 fee
will be levied.
2.12 All disputes concerning the
determination of any amounts payable under this
Agreement shall be subject to expedited arbitration
outside of the American Arbitration Association
("AAA") before an attorney or expert who is
knowledge-able and experienced in matters similar to
the transactions contemplated in this Agreement and
who is selected by mutual agreement of the parties. A
party shall commence arbitration by delivering written
notice to the other party. If the parties fail to
agree on an attorney or expert as arbitrator within
thirty (30) days after the date on which the notice of
commencement of arbitration is delivered, arbitration
shall be by the AAA, subject to the rules of the AAA
then in effect. Judgment upon the award rendered in
any arbitration may be entered in any court having
jurisdiction of the matter.
2.13 Late payments if card is
declined - Clients will be notified if there are any
problems. If payment is not received within 10 days
after the due date, your site will be deactivated
until payment arrangements have been made and a
reactivation fee of $25 is paid.
3. Representations and Warranties
3.1 Authority. Merchant
represents and warrants to TIAS that (i) it has all
necessary rights and authority to enter into this
Agreement and to perform its obligations under this
Agreement, and (ii) nothing contained in this Agreement
nor Merchant’s performance of any of its obligations
under this Agreement will place Merchant in breach of
any other contract or obligation.
3.2 No Infringement. Merchant
represents and warrants to TIAS that the provision and
use of any content, graphics and other materials
provided by Merchant for use in the creation, building,
set up or operation of Merchant’s web pages (including
any third party advertising or content) for the Site
will not (a) in any way infringe or otherwise violate
any copyright, patent, trademark, trade secret or other
proprietary or personal right of any third party,
including any customer, or (b) violate any criminal or
civil law, rule or regulation.
3.3 Operation of Software.
Merchant represents and warrants to TIAS that all of the
content, graphics and other materials provided by
Merchant for use in the creation, building, set up or
operation of Merchant’s web pages (including content)
for the Site is free, and will be free of all viruses,
Trojan horses, time bombs or other disabling device.
Merchant also represents and warrants to TIAS that any
graphics provided by Merchant for use in the creation,
building, set up or operation of Merchant's web pages
for the Site is free, and will be free, of all copyright
restrictions.
4. Limitations on Liability,
Disclaimers, Indemnification
5.1 No Consequential Damages.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY
INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES
OR FOR ANY LOST OR IMPUTED PROFITS AS A RESULT OF ANY
ACT OR OMISSION UNDER THIS AGREEMENT OR OF THE
TERMINATION OF THIS AGREEMENT, WHETHER FOR BREACH OF
WARRANTY OR OTHERWISE, WHETHER LIABILITY IS ASSERTED IN
CONTRACT OR TORT (INCLUDING NEGLIGENCE AND STRICT
PRODUCT LIABILITY) AND IRRESPECTIVE OF WHETHER THE PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR
DAMAGE. EACH PARTY HEREBY WAIVES ANY CLAIMS THAT THESE
EXCLUSIONS DEPRIVE SUCH PARTY OF AN ADEQUATE REMEDY.
5.2 No Additional Warranties.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT. NEITHER
PARTY MAKES ANY, AND EACH PARTY HEREBY SPECIFICALLY
DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR
IMPLIED, REGARDING THE SITE OR MERCHANT'S WEB PAGES,
INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES
ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
MERCHANT ACKNOWLEDGES AND AGREES THAT
(A) TIAS MAY ENCOUNTER TECHNICAL OR OTHER DIFFICULTIES
WHICH MAY HINDER ITS PERFORMANCE OF SERVICES UNDER THIS
AGREEMENT OR RESULT IN THE INTERRUPTION OF THE OPERATION
OF THE SITE, (B) TIAS MAKES NO REPRESENTATION OR
WARRANTY THAT MERCHANT’S USE OF THE SITE WILL BE
UNINTERRUPTED OR ERROR-FREE OR AS TO THE RESULTS THAT
WILL BE OBTAINED FROM MERCHANT’S USE OF THE SITE, AND
(C) TIAS DOES NOT AND CANNOT GUARANTY THE SECURITY OF
ANY TRANSMISSIONS TO OR FROM MERCHANT OR ANY OF ITS
CUSTOMERS.
5.3 Indemnity. Merchant shall
defend, indemnify, save and hold harmless TIAS and each
of its officers, directors, employees, agents,
affiliates, distributors and franchisees from any and
all third party claims, demands, liabilities, costs and
expenses (including, but not limited to, reasonable
attorneys' fees incurred in investigating, defedning and
settling any such claim) resulting from Merchant’s
breach of or failure to perform any of its obligations
under this Agreement or from the inaccuracy of any
representation or warranty provided by Merchant under
this Agreement.
5.4 Claims. Upon the assertion
of any claim or the commencement of any suit or
proceeding against TIAS by a third party for which TIAS
may seek indemnification from Merchant under this
Agreement, TIAS shall promptly notify Merchant of such
claim and shall give Merchant reasonable opportunity to
defend and/or settle the claim at its own expense and
with counsel of its own selection. Any delay by TIAS in
notifying Merchant of such claim shall not limit in any
way Merchant’s indemnification obligation unless such
delay materially and adversely prejudice Merchant's
ability to defend against such claim. TIAS shall (i)
cooperate with Merchant in the defense of any claim,
(ii) at all times have the right fully to participate in
such defense of the claim at its own expense, and (iii)
not be obligated, against its consent, to participate in
any settlement which it reasonably believes would have
an adverse effect on its business or property rights.
TIAS shall not settle any claim for which its seeks
indemnification from Merchant without the prior written
consent of Merchant, which consent shall not be
unreasonably withheld.
6. Independent Contractors.
6.1 Independent Contractors.
Performance by the parties under this Agreement shall be
as independent contractors. Nothing contained in this
Agreement or done in pursuance of this Agreement shall
constitute the parties' entering upon a joint venture or
partner-ship, or shall constitute either party the agent
for the other party for any purpose or in any sense
whatsoever, or to create any fiduciary or any other
extra obligations.
7. Term and Termination
7.1 Month to Month Agreement.
This is a month to month Agreement which either party
may terminate at any time, for any reason, on thirty
(30) days prior written notice to the other party.
7.2 Late Payments. TIAS may,
without prior notice to Merchant, terminate this
Agreement and remove Merchant's web page(s) from the
Site if Merchant has not paid any amount due and payable
under this Agreement within thirty (30) days after the
date on which such amount was first due and payable.
7.3 Effect of Termination. The
termination of this Agreement by either party shall not
constitute or be deemed to constitute the waiver or
release by such party of any right or claim such party
may have against the other party by reason of actions or
omissions occurring on or before the effective date of
termination. TIAS may, at any time within thirty (30)
days after the date of termination, charge Merchant’s
credit card for any amounts described in Section 3
above. Merchant shall pay to TIAS all amounts described
in Section 3 above and payable for the period through
the date of termination within thirty (30) days after
the date of termination of this Agreement.
7.4 Survival. The rights and
obligations of each party under Sections and hereof will
survive the expiration or any termination of this
Agreement.
8. General Provisions
8.1 Notices. Any notice
required to be sent by either party under this Agreement
may be sent by personal delivery, by registered or
certified mail, postage pre-paid, or by email, facsimile
or other form of electronic transmission, to the
respective addresses or facsimile numbers of the
parties, or to such other address which may hereinafter
be designated in writing. Any notice shall be deemed to
have been delivered when served, if personally served,
three (3) business days after mailing, if mailed, and
one (1) business day after transmission, if sent by
email, facsimile or other form of electronic
transmission.
8.2 Force Majuere. Neither
party shall be deemed in default of this Agreement to
the extent that performance of its obligations or
attempts to cure any breach are delayed or prevented by
reason of any act of God, fire, natural disaster,
accident, riots, acts of government, shortage of
materials or supplies, or any other cause beyond the
reasonable control of such party; provided, that the
party interfered gives the other party written notice
thereof within ten (10) working days of any such event
or occurrence.
8.3 No Waiver. The failure of
either party to insist upon or enforce strict
performance by the other Party of any provision of this
Agreement or to exercise any right under this Agreement
shall not be construed as a waiver or relinquishment to
any extent of such Party's right to assert or rely upon
any such provision or right in that or any other
instance; rather the same shall be and remain in full
force and effect.
8.4 Entire Agreement. This
Agreement is the entire agreement, and replaces any and
all prior agreements of the parties for the services
covered here. No change, amendment or modification of
any provision of this Agreement shall be valid unless in
writing signed by both parties.
8.5 Severability. In the event
that any provision of this Agreement conflicts with the
law under which this Agreement is to be construed or if
any such provision is held invalid by a court with
jurisdiction over the parties to this Agreement, such
provision shall be deemed to be restated to reflect as
nearly as possible the original intentions of the
Parties in accordance with applicable law, and the
remainder of this Agreement shall remain in full force
and effect.
8.6 Interpretation. Each party
to this Agreement has been represented by independent
legal counsel. Therefore, the normal rule of
construction that an agreement shall be interpreted
against the drafting party shall not apply. All pronouns
and any variation thereof shall be deemed to refer to
the masculine, feminine, or neuter and to the singular
or plural as the identity of the person or persons may
require for property interpretation of this Agreement.
8.7 Applicable Law; Jurisdiction.
This Agreement shall be interpreted, construed and
enforced in all respects in accordance with the laws of
the State of Delaware except for its conflicts of laws
principles. Each party irrevocably consents to the
exclusive jurisdiction of the courts of the State of
Delaware and the federal courts situated in the State of
Delaware, in connection with any action to enforce the
provisions of this Agreement, to recover damages or
other relief for breach or default under this Agreement,
or otherwise arising under or by reason of this
Agreement.