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| Posted
- February 27, 2004 |
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| Terms
of Service |
| 1. |
Order,
Acceptance and Service. |
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| a. |
When
Accepted by Youth Glue, the Order submitted
by Customer creates a contract between Customer
and LOL Interactive, consisting of the Order,
the applicable Service Description and these
Terms of Service. An Order is "Accepted"
by Youth Glue when (i) with respect to Orders
submitted online, LOL Interactive provides
Services in response to the Order or bills
Customer for payment and (ii) with respect
to Orders reduced to writing and signed
on an approved Youth Glue form, when an
authorized representative of LOL Interactive
executes and delivers such form signed by
Customer. |
| b. |
LOL
Interactive will provide, and Customer will
purchase and pay for, the Services specified
in the Order for the service fees specified
in the Order and the applicable Service
Description (the "Service Fees").
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| c. |
In
connection with any Data Storage Services,
Customer will not use storage space in excess
of the storage limits established for the
Services in the Service Descriptions, plus
any storage space purchased by Customer.
If Customer uses storage space in excess
of such amounts, LOL Interactive may, without
limiting its other rights or remedies, assess
Customer with additional fees. |
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| 2. |
Fees,
Taxes and Payment. |
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Customer will pay to LOL Interactive the Service
Fees in the manner set forth in the Order. LOL
Interactive may increase the Service Fees (i)
in the manner permitted in the Service Description
and (ii) at any time on or after expiration of
the Initial Term by providing ten (10) days prior
written notice thereof to Customer. The Service
Fees do not include any applicable sales, use,
revenue, excise or other taxes imposed by any
taxing authority with respect to the Services
or any software provided hereunder (excluding
any tax on LOL Interactive's net income). All
such taxes will be added to LOL Interactive's
invoices for the Service Fees as separate charges
to be paid by Customer. All fees are fully earned
when due and non-refundable when paid. Unless
otherwise specified, invoices for the Service
Fees and related charges shall be due and payable
within 30 days after the date of the invoice.
If any invoice is not paid within 45 days after
the date of the invoice, LOL Interactive may charge
Customer a late fee of $15 for such invoice; in
addition any amounts payable to LOL Interactive
not paid when due will bear interest at the rate
of one and one half percent (1.5%) per month or
the maximum rate permitted by applicable law,
whichever is less. Delinquent accounts may be
suspended at LOL Interactive's sole discretion.
In the event of a suspension of the Services,
upon a reactivation request by Customer, Customer
shall pay LOL Interactive a reactivation fee in
addition to full payment of the outstanding balance
due. Reactivation of services will only be performed
during LOL Interactive's normal business hours
(Monday through Friday, 9:00 am - 6:00 p.m., Central-Standard
Time, excluding holidays.) If LOL Interactive
collects any payment due at law or through an
attorney at law or under advice therefrom or through
a collection agency, or if LOL Interactive prevails
in any action to which the Customer and LOL Interactive
are parties, Customer will pay all costs of collection,
arbitration and litigation, including, without
limitation, all court costs and LOL Interactive's
reasonable attorneys' fees. If any Customer payment
is returned for insufficient funds LOL Interactive
will impose a processing charge of $25. If two
or more Customer payments are returned for insufficient
funds in any 6 month period, LOL Interactive in
its sole discretion may require alternative payment
methods for all future Customer payments including,
without limitation, credit card, money order,
or cashier's check. |
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| 3. |
Term
and Termination. |
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| a. |
Services
will commence on the Effective Date indicated
in the Order and continue for the duration
of the Initial Term. Thereafter, the Order
will automatically renew for successive
one month periods unless the Order is earlier
terminated in accordance with its terms
or either party gives written notice to
the other party of non-renewal at least
30 days prior to expiration of the then-current
term. |
| b. |
Either
party may terminate this Agreement immediately
upon the occurrence of any one or more of
the following events: (i) the other party
fails to pay when due any amounts required
to be paid under this Agreement; (ii) the
other party breaches any material term or
provision of this Agreement (other than
a breach described in subsection (i) above),
and if capable of cure, such breach remains
uncured 30 days after the non-breaching
party gives written notice thereof to the
breaching party; or (iii) the other party
becomes insolvent, makes an assignment for
the benefit of its creditors, institutes
or becomes subject to any proceeding under
any bankruptcy or similar laws for the relief
of debtors, or seeks the appointment of,
or becomes subject to the appoint of, any
trustee or receiver for all or any portion
of such party's assets |
| c. |
LOL
Interactive may terminate this Agreement
(i) if the Services are prohibited by applicable
law, or become impractical or unfeasible
for any technical, legal or regulatory reason,
by giving Customer as much prior notice
as reasonably practicable or (ii) immediately
by giving written notice to Customer, if
LOL Interactive determines in good faith
that Customer's use of the Customer Web
site or the Customer Content violates the
Acceptable Use Policy. |
| d. |
Upon
termination of this Agreement for any cause
or reason whatsoever, neither party shall
have any further rights or obligations under
this Agreement, except as expressly set
forth herein. The provisions of Sections
3(d), 4, 8, 10, 11, 13 and 15
of this Agreement shall survive the expiration
or termination of this Agreement for any
cause or reason whatsoever, and, notwithstanding
the expiration or termination of this Agreement,
the parties shall each remain liable to
the other for any indebtedness or other
liability theretofore arising under this
Agreement. Termination of this Agreement
and retention of pre-paid fees and charges
shall be in addition to, and not be in lieu
of, any other legal or equitable rights
or remedies to which LOL Interactive may
be entitled. |
| e. |
With
respect to Non-Prepaid Plans, within 30
days after the termination of this Agreement,
Customer will pay the Termination Charge
to LOL Interactive unless (i) LOL Interactive
terminated the Order under Section 3(c)
or (ii) Customer terminated the Order under
Section 3(b). With respect
to Prepaid Plans, Customer will pay the
Termination Charge as provided in the Service
Description. The parties agree that the
Termination Charge constitutes consideration
for LOL Interactive's time, effort and expense
in preparing and reserving the capacity
to perform its obligations hereunder, as
actual damages are difficult to ascertain.
If Customer terminates the Order in accordance
with Section 3(b), or
if LOL Interactive terminates the Order
under Sections 3(c)(i)
or 12(c), LOL Interactive
shall return to Customer, and Customer shall
accept, as Customer's sole and exclusive
remedy for LOL Interactive's breach of the
Order, any Service Fees paid in advance
by Customer hereunder attributable to Services
not yet rendered as of the date of termination.
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| 4. |
Customer's
Representations and Warranties. |
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Customer
hereby represents and warrants to LOL Interactive,
and agrees that during the Term Customer will
ensure that: (a) Customer is the owner or valid
licensee of the Customer Content and each element
thereof, and Customer has secured all necessary
licenses, consents, permissions, waivers and releases
for the use of the Customer Content and each element
thereof, including without limitation, all trademarks,
logos, names and likenesses contained therein,
without any obligation by LOL Interactive to pay
any fees, residuals, guild payments or other compensation
of any kind to any Person; (b) Customer's use,
publication and display of the Customer Content
will not infringe any copyright, patent, trademark,
trade secret or other proprietary or intellectual
property right of any Person, or constitute a
defamation, invasion of privacy or violation of
any right of publicity or any other right of any
Person, including, without limitation, any contractual,
statutory or common law right or any "moral right"
or similar right however denominated; (c) Customer
will comply with all applicable laws, rules and
regulations regarding the Customer Content and
the Customer Web site and will use the Customer
Web site only for lawful purposes; (d) Customer
has used its best efforts to ensure that the Customer
Content is and will at all times remain free of
all computer viruses, worms, trojan horses and
other malicious code; and (e) Customer will use
the Services only for business purposes and not
for any family, household or personal use. |
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| 5. |
License
to LOL Interactive. |
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Customer
hereby grants to LOL Interactive a non-exclusive,
royalty-free, worldwide right and license during
the Term to do the following to the extent necessary
in the performance of Services under the Order:
(a) digitize, convert, install, upload, select,
order, arrange, compile, combine, synchronize,
use, reproduce, store, process, retrieve, transmit,
distribute, publish, publicly display, publicly
perform and hyperlink the Customer Content; and
(b) make archival or back-up copies of the Customer
Content and the Customer Web site. Except for
the rights expressly granted above, LOL Interactive
is not acquiring any right, title or interest
in or to the Customer Content, all of which shall
remain solely with Customer. |
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| 6. |
LOL
Interactive's Acceptable Use Policy. |
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Customer
will abide by, and utilize the Services and the
Customer Web site only in accordance with, the
Acceptable Use Policy (the "Acceptable
Use Policy") that LOL Interactive posts
on its Web site for Youth Glue, as such Acceptable
Use Policy may be changed by LOL Interactive from
time to time. The Acceptable Use Policy is hereby
incorporated herein and made a part hereof by
this reference. Customer shall impose the Acceptable
Use Policy on its Users and End Users to the extent
necessary to ensure their compliance. Customer
shall familiarize itself with the Acceptable Use
Policy and periodically access Youth Glue's Web
site to determine if LOL Interactive has made
any changes thereto. |
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| 7. |
Customer's
Responsibilities. |
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| a. |
Delays
in Customer's performance of its obligations
under this Agreement will extend the time
for LOL Interactive's performance of its
obligations that depend on Customer's performance
on a day for day basis. Customer will notify
LOL Interactive of any change in Customer's
mailing address, telephone, e-mail or other
contact information through the Youth Glue
Web site. |
| b. |
Customer
assumes full responsibility for providing
End Users with any required disclosure or
explanation of the various features. |
| c. |
Customer
is responsible for ensuring that the Customer
Content and all aspects of the Customer
Web site are compatible with the hardware
and software used by LOL Interactive to
provide Services, as the same may be changed
by LOL Interactive from time to time. Customer
shall periodically access Youth Glue's Web
site to determine if LOL Interactive has
made any changes thereto. LOL Interactive
shall not be responsible for any damages
to the Customer Content, the Customer Web
site or other damages or any malfunctions
or service interruptions caused by any failure
of the Customer Content or any aspect of
the Customer Web site to be compatible with
the hardware and software used by LOL Interactive
to provide the Services. |
| d. |
Unless
the applicable Service Description provides
otherwise, Customer is solely responsible
for making back-up copies of the data of
the Customer Content. |
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| 8. |
LOL
Interactive Intellectual Property.
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| a. |
LOL
Interactive hereby grants to Customer a
non-exclusive, non-transferable, royalty-free
license, exercisable solely during the term
of this Agreement, to use applicable LOL
Interactive Technology solely for the purpose
of accessing and using the Services. Customer
may not use the LOL Interactive Technology
for any purpose other than accessing and
using the Services. Except for the rights
expressly granted above, this Agreement
does not transfer from LOL Interactive to
Customer any LOL Interactive Technology,
and all rights, titles and interests in
and to the LOL Interactive Technology shall
remain solely with LOL Interactive. Customer
shall not, directly or indirectly, reverse
engineer, decompile, disassemble or otherwise
attempt to derive source code, functionality
or other trade secrets from any of the LOL
Interactive Technology. |
| b. |
LOL
Interactive's trademarks, tradenames, service
marks, logos, other names and marks, and
related product and service names, design
marks and slogans are the sole and exclusive
property of LOL Interactive. Customer may
not use any of the foregoing in any advertising,
publicity or in any other commercial manner
without the prior written consent of LOL
Interactive. LOL Interactive shall maintain
and control ownership of all Internet protocol
numbers and addresses that may be assigned
by LOL Interactive to Customer. LOL Interactive
may, in its sole discretion, change or remove
any and all such Internet protocol numbers
and addresses. |
| c. |
Any
feedback, data, answers, questions, comments,
suggestions, ideas or the like which Customer
sends to LOL Interactive relating to the
Services will be treated as being non-confidential
and non-proprietary. LOL Interactive may
use, disclose or publish any ideas, concepts,
know-how or techniques contained in such
information for any purpose whatsoever. |
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| 9. |
Limited
Warranty. |
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| a. |
LOL
Interactive represents and warrants to Customer
that the Services will be performed (i)
in a manner consistent with industry standards
reasonably applicable to the performance
thereof; (ii) at least at the same level
of service as provided by LOL Interactive
generally to its other customers for the
same services; and (iii) in compliance in
all material respects with the applicable
Service Descriptions. Customer will be deemed
to have accepted such Services unless Customer
notifies LOL Interactive within 30 days
after performance of any Services of any
breach of the foregoing warranties. Customer's
sole and exclusive remedy, and LOL Interactive's
sole obligation, for breach of the foregoing
warranties shall be for LOL Interactive,
at its option, to re-perform the defective
Services at no cost to Customer, or, in
the event of interruptions to the Services
caused by a breach of the foregoing warranties,
issue Customer a credit in an amount equal
to the current monthly Service Fees pro
rated by the number of hours in which the
Services have been interrupted. LOL Interactive
may provision the Services from any of its
data centers and may from time to time re-provision
the Services from different data centers. |
| b. |
The
foregoing warranties shall not apply to
performance issues or defects in the Services
(i) caused by factors outside of LOL Interactive's
reasonable control; (ii) that resulted from
any actions or inactions of Customer or
any third parties; or (iii) that resulted
from Customer's equipment or any third-party
equipment not within the sole control of
LOL Interactive. |
| c. |
EXCEPT
AS EXPRESSLY PROVIDED IN THIS SECTION 9,
LOL INTERACTIVE MAKES NO REPRESENTATIONS
OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED,
WITH RESPECT TO THE SERVICES OR ANY SOFTWARE
PROVIDED UNDER THIS AGREEMENT, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE
OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS,
AND LOL INTERACTIVE HEREBY EXPRESSLY DISCLAIMS
THE SAME. WITHOUT LIMITING THE FOREGOING,
ANY THIRD-PARTY SOFTWARE PROVIDED TO CUSTOMER
HEREUNDER IS PROVIDED "AS IS" WITHOUT ANY
CONDITION OR WARRANTY WHATSOEVER. LOL INTERACTIVE
DOES NOT WARRANT THAT THE SERVICES WILL
BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY
SECURE. |
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| 10. |
Limitation
of Liability. |
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| a. |
IN
NO EVENT WILL LOL INTERACTIVE'S LIABILITY
IN CONNECTION WITH THE SERVICES, ANY SOFTWARE
PROVIDED HEREUNDER OR ANY ORDER, WHETHER
CAUSED BY FAILURE TO DELIVER, NON-PERFORMANCE,
DEFECTS, BREACH OF WARRANTY OR OTHERWISE,
EXCEED THE AGGREGATE SERVICE FEES PAID TO
LOL INTERACTIVE BY CUSTOMER DURING THE 12-MONTH
PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING
RISE TO SUCH LIABILITY.
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| b. |
LOL
INTERACTIVE CANNOT GUARANTEE CONTINUOUS
SERVICE, SERVICE AT ANY PARTICULAR TIME,
INTEGRITY OF DATA, INFORMATION OR CONTENT
STORED OR TRANSMITTED VIA THE INTERNET.
LOL INTERACTIVE WILL NOT BE LIABLE FOR ANY
UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION,
ERASURE, THEFT, DESTRUCTION, ALTERATION
OR INADVERTENT DISCLOSURE OF, DATA, INFORMATION
OR CONTENT TRANSMITTED, RECEIVED OR STORED
ON ITS SYSTEM. |
| c. |
EXCEPT
AS EXPRESSLY PROVIDED BELOW, NEITHER PARTY
SHALL BE LIABLE IN ANY WAY TO THE OTHER
PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS
OR REVENUES, LOSS OF USE, LOSS OF DATA OR
COSTS OF PROCUREMENT OF SUBSTITUTE GOODS,
LICENSES OR SERVICES OR SIMILAR ECONOMIC
LOSS, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL,
INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES
OF ANY NATURE, WHETHER FORESEEABLE OR NOT,
UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER,
ARISING OUT OF OR IN CONNECTION WITH THE
PERFORMANCE OR NON-PERFORMANCE OF ANY ORDER,
OR (EXCEPT AS PROVIDED IN SECTIONS 11 AND
12) FOR ANY CLAIM AGAINST THE OTHER PARTY
BY A THIRD PARTY, REGARDLESS OF WHETHER
IT HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH CLAIM OR DAMAGES. |
| d. |
The
limitations contained in this Section
10 apply to all causes of action
in the aggregate, whether based in contract,
tort or any other legal theory (including
strict liability), other than claims based
on fraud or willful misconduct. The limitations
contained in Section 10(c)
shall not apply to liability arising on
account of a party's breach of Section
13 or to Customer's indemnification
obligations under Section 11.
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| 11. |
Indemnification
of LOL Interactive. |
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Customer shall defend, indemnify and hold harmless
LOL Interactive, its affiliates and their respective
present, former and future officers, directors,
employees and agents, and their respective heirs,
legal representatives, successors and assigns
(collectively the "LOL Interactive Indemnities"),
from and against any and all losses, damages,
costs, liabilities and expenses (including, without
limitation, amounts paid in settlement and reasonable
attorneys' fees) which any of the LOL Interactive
Indemnities may suffer, incur or sustain resulting
from or arising out of (i) Customer's breach of
any representation, warranty, or covenant contained
in the Agreement, (ii) the Customer Content, the
Customer Web site or any End User's use of the
Customer Content or the Customer Web site, (iii)
violation by Customer or any of its officers,
directors, employees or agents of the Acceptable
Use Policy or any applicable law, (iv) claims
or actions of third parties alleging misappropriation
of trade secrets or infringement of patents, copyrights,
trademarks or other intellectual property rights
arising from the use, display or publication of
Customer's domain names, the Customer Web site,
the Customer Content, or the use of the Services
in combination with hardware, software or content
not provided by LOL Interactive, (v) claims or
actions by third parties relating to or arising
out of Customer's use of the Services, and (vi)
any failure of the Customer Content or any aspect
of the Customer Web site to be compatible with
the hardware or software used by LOL Interactive
to provide the Services, including any damage
to LOL Interactive's servers or other hardware
caused thereby. |
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| 12. |
Indemnification
of Customer. |
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| a. |
Subject
to Section 10, LOL Interactive
shall, at its own expense, indemnify, defend
and hold Customer harmless from any claim
or suit alleging that the Services infringe
any United States patent, copyright or trademark
existing on the Effective Date, or that
LOL Interactive has knowingly misappropriated
any trade secret or other intellectual property
right of any other Person, including any
losses, damages or expenses arising from
any such claim or suit. Customer agrees
to cooperate with and assist LOL Interactive
in the defense or settlement of any such
claim or suit. Customer shall be reimbursed
for all reasonable out-of-pocket expenses
incurred in providing any cooperation or
assistance requested by LOL Interactive,
but LOL Interactive will not be liable for
any costs or expenses incurred without its
prior written authorization. |
| b. |
Promptly
after receipt by Customer of a threat of
any claim or suit, or a notice of the commencement
or filing of any claim or suit, against
which Customer may be indemnified hereunder,
Customer shall give written notice thereof
to LOL Interactive, provided that failure
to give or delay in giving such notice to
LOL Interactive shall not relieve LOL Interactive
of any liability it may have to Customer
hereunder, except to the extent that the
defense of such claim or suit is prejudiced
thereby. LOL Interactive shall have sole
control of the defense, and of all negotiations
for settlement, of such claim or suit. Subject
to the foregoing, Customer may participate
in the defense of any such claim or suit
at Customer's own expense. |
| c. |
If
an injunction, decree or judgment is, or
LOL Interactive believes in its sole discretion
is likely to be, entered providing that
Customer may not use the Services as contemplated
in this Agreement without violating the
intellectual property rights of a third
party, LOL Interactive may, at its sole
option and expense, either (i) procure for
Customer the right to use the Services or
affected part thereof as provided in this
Agreement; (ii) replace the Services or
affected part thereof with other non-infringing
services or modify the Services or affected
part thereof so as to be non-infringing;
or (iii) terminate this Agreement upon written
notice to Customer. |
| d. |
Notwithstanding
Section 12(a), LOL Interactive
assumes no liability for infringement claims
arising from (i) use of the Services with
third-party products or services where the
third-party products or services cause the
infringement, (ii) any modification of the
Services not authorized by LOL Interactive
in writing, (iii) the Customer Content,
the Customer Web site or any content, data
or information provided or supplied by an
End User, or (iv) Customer's use of any
third-party software provided hereunder.
THE FOREGOING DEFENSE AND INDEMNIFICATION
PROVISIONS STATE THE ENTIRE LIABILITY AND
OBLIGATION OF LOL INTERACTIVE, AND THE EXCLUSIVE
REMEDY OF CUSTOMER, WITH RESPECT TO ANY
ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL
PROPERTY RIGHT BY THE SERVICES PROVIDED
HEREUNDER. |
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| 13. |
Confidentiality;
Non-Solicitation. |
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| a. |
Each
party will not, without the prior written
consent of the other party, use or disclose
to any Person any Proprietary Information
of the other party disclosed or made available
to it, except for use of such Proprietary
Information as required in connection with
the performance of its obligations or use
of the Services hereunder. Subject to Section
13(b), each party will (i) treat
the Proprietary Information of the other
party as secret and confidential, (ii) limit
access to the Proprietary Information of
the party to those of its employees who
require it in order to effectuate the purposes
of this Agreement, and (iii) not disclose
the Proprietary Information of the other
party to any other Person without the prior
written consent of the other party. |
| b. |
Notwithstanding
Section 13(a), the following
shall not be considered Proprietary Information:
(i) any information that the receiving party
can demonstrate by written documentation
was within its legitimate possession prior
to the time of disclosure by the disclosing
party; (ii) any information that was in
the public domain prior to disclosure by
the disclosing party as evidenced by documents
that were published prior to such disclosure;
(iii) any information that, after disclosure
by the disclosing party, comes into the
public domain through no fault of the receiving
party, (iv) any information that is disclosed
to the receiving party without restriction
by a third party who has legitimate possession
thereof and the legal right to make such
disclosure; or (v) any information that,
two years after expiration or termination
of this Agreement, does not constitute a
trade secret under applicable law.
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| c. |
Each
party acknowledges that disclosure of any
aspect of the Proprietary Information of
the other party shall immediately give rise
to continuing irreparable injury to the
other party inadequately compensable in
damages at law, and, without prejudice to
any other remedy available to the other
party, shall entitle the other party to
injunctive or other equitable relief. Upon
expiration or termination of this Agreement
for any reason, each party shall promptly
return to the other party all Proprietary
Information of the other party (including
all copies thereof) in its possession or
control. |
| d. |
During
the term of this Agreement and for two years
following expiration or termination of this
Agreement, Customer will not, directly or
indirectly, solicit or recruit the services
of any employee of LOL Interactive performing
services under this Agreement, while such
employee is employed by LOL Interactive
and for a period of six months after such
employee has left the employment of LOL
Interactive. |
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| 14. |
Optional
Services. In connection with any Optional
Services: |
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| a. |
Customer must provide LOL Interactive with
any information, login identifications,
passwords or other information or access
to facilities that LOL Interactive may reasonably
require to provide the Optional Services
LOL Interactive will have no responsibility
for any delays or increased costs or expenses
associated with Customer's failure to provide
any of such information. If Customer does
not provide any such information or access
requested by LOL Interactive within fifteen
(15) days of LOL Interactive's request therefore,
LOL Interactive may terminate the Order
and retain any Service Fees paid.
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| b. |
If
Customer requested that LOL Interactive
perform the Optional Services by a particular
deadline or that LOL Interactive achieve
some particular result or outcome, LOL Interactive
will use commercially reasonable best efforts
to perform the Services by any such deadline
and achieve the result requested by Customer;
provided, however, that (i) LOL Interactive's
ability to perform the Services is subject
to Customer's provision of information and
access as provided above and (ii) LOL Interactive
has no liability or obligation to complete
the Services by any deadline or achieve
any particular outcome or result. |
| c. |
If
Customer wishes to convey documents or files
to LOL Interactive, Customer should deliver
to LOL Interactive a copy or duplicate of
such documents or files and not the original
copy. LOL Interactive will not return to
Customer any documents or files conveyed
to LOL Interactive. |
| d. |
LOL
Interactive will have no liability or responsibility
for any damage, loss of data, loss of use
or other loss occurring in connection with
LOL Interactive's provision of Optional
Services requested by Customer.
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| 15. |
Miscellaneous. |
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| a. |
Independent
Contractor. |
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LOL
Interactive and Customer are independent
contractors and nothing contained in this
Agreement places LOL Interactive and Customer
in the relationship of principal and agent,
master and servant, partners or joint venturers.
Neither party has, expressly or by implication,
or may represent itself as having, any authority
to make contracts or enter into any agreements
in the name of the other party, or to obligate
or bind the other party in any manner whatsoever.
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| b. |
Governing
Law; Jurisdiction. |
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Any
controversy or claim arising out of or relating
to this Agreement, the formation of this
Agreement or the breach of this Agreement,
including any claim based upon arising from
an alleged tort, shall be governed by the
substantive laws of the State of Oklahoma,
except that all arbitration and related
proceedings conducted pursuant to Section
15(c) below, including without limitation
confirmation proceedings, shall be governed
by the Federal Arbitration Act, 9 U.S.C.
§§ 1, et. seq. . The United Nations Convention
on Contracts for the International Sale
of Goods does not apply to this Agreement.
ANY SUIT, ACTION OR PROCEEDING CONCERNING
THIS AGREEMENT THAT IS NOT SUBJECT TO MANDATORY
ARBITRATION PURSUANT TO SECTION 15(C) BELOW
MUST BE BROUGHT IN AN OKLAHOMA STATE OR
FEDERAL COURT LOCATED IN OKLAHOMA COUNTY,
OKLAHOMA, AND EACH OF THE PARTIES HEREBY
IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION
OF SUCH COURTS (AND OF THE APPROPRIATE APPELLATE
COURTS THEREFROM) IN ANY SUCH SUIT, ACTION
OR PROCEEDING AND IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF THE VENUE OF ANY SUCH
SUIT, ACTION OR PROCEEDING IN ANY SUCH COURT
OR THAT ANY SUCH SUIT, ACTION OR PROCEEDING
WHICH IS BROUGHT IN ANY SUCH COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM.
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| c. |
Mandatory
Arbitration. |
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Notwithstanding
Section 15(b) above, each party agrees that
any dispute between the parties arising
out of this Agreement or in any manner relating
to the Services must be submitted by the
parties to arbitration in accordance with
the Commercial Arbitration Rules of the
American Arbitration Association, as administered
by Resolutions Resources Corp. of Oklahoma
City, OK (or such other recognized provider
of arbitration services agreed upon by both
parties) before a single arbitrator, appointed
in accordance with such rules. Any such
arbitrator must render a reasoned opinion
in writing only where the amount in dispute
exceeds $100,000. Judgment upon the award
may be entered in any court having jurisdiction
thereof. Any such arbitration will be held
in Oklahoma City, Oklahoma. Any action filed
by either party in any court in violation
of this Section should be dismissed pursuant
to this Section. |
| d. |
Headings. |
| |
The
headings herein are for convenience only
and are not part of this Agreement. |
| e. |
Entire
Agreement; Amendments. |
| |
This
Agreement, including documents incorporated
herein by reference, supersedes all prior
discussions, negotiations and agreements
between the parties with respect to the
subject matter hereof, and this Agreement
constitutes the sole and entire agreement
between the parties with respect to the
matters covered hereby. In case of a conflict
between this Agreement and any purchase
order, service order, work order, confirmation,
correspondence or other communication of
Customer or LOL Interactive, the terms and
conditions of this Agreement shall control.
No additional terms or conditions relating
to the subject matter of this Agreement
shall be effective unless approved in writing
by any authorized representative of Customer
and LOL Interactive. This Agreement may
not be modified or amended except by another
agreement in writing executed by the parties
hereto; provided, however, that these Terms
of Service may be modified from time to
time by LOL Interactive in its sole discretion,
which modifications will be effective upon
posting to LOL Interactive's web site.
|
| f. |
Severability. |
| |
All
rights and restrictions contained in this
Agreement may be exercised and shall be
applicable and binding only to the extent
that they do not violate any applicable
laws and are intended to be limited to the
extent necessary so that they will not render
this Agreement illegal, invalid or unenforceable.
If any provision or portion of any provision
of this Agreement shall be held to be illegal,
invalid or unenforceable by a court of competent
jurisdiction, it is the intention of the
parties that the remaining provisions or
portions thereof shall constitute their
agreement with respect to the subject matter
hereof, and all such remaining provisions
or portions thereof shall remain in full
force and effect. |
| g. |
Notices. |
| |
All
notices and demands required or contemplated
hereunder by one party to the other shall
be in writing and shall be deemed to have
been duly made and given upon date of delivery
if delivered in person or by an overnight
delivery or postal service, upon receipt
if delivered by facsimile the receipt of
which is confirmed by the recipient, or
upon the expiration of five days after the
date of posting if mailed by certified mail,
postage prepaid, to the addresses or facsimile
numbers set forth below the parties' signatures.
Either party may change its address or facsimile
number for purposes of this Agreement by
notice in writing to the other party as
provided herein. LOL Interactive may give
written notice to Customer via e-mail to
the Customer's e-mail address as maintained
in LOL Interactive's billing records. |
| h. |
Waiver. |
| |
No
failure or delay by any party hereto to
exercise any right or remedy hereunder shall
operate as a waiver thereof, nor shall any
single or partial exercise of any right
or remedy by any party preclude any other
or further exercise thereof or the exercise
of any other right or remedy. No express
waiver or assent by any party hereto to
any breach of or default in any term or
condition of this Agreement shall constitute
a waiver of or an assent to any succeeding
breach of or default in the same or any
other term or condition hereof. |
| i. |
Assignment;
Successors. |
| |
Customer
may not assign or transfer this Agreement,
or any of its rights or obligations hereunder,
without the prior written consent of LOL
Interactive. Any attempted assignment in
violation of the foregoing provision shall
be null and void and of no force or effect
whatsoever. LOL Interactive may assign its
rights and obligations under this Agreement,
and may engage subcontractors or agents
in performing its duties and exercising
its rights hereunder, without the consent
of Customer. This Agreement shall be binding
upon and shall inure to the benefit of the
parties hereto and their respective successors
and permitted assigns. |
| j. |
Limitation
of Actions. |
| |
No
action, regardless of form, arising by reason
of or in connection with this Agreement
may be brought by either party more than
two years after the cause of action has
arisen. |
| j. |
Counterparts. |
| |
If this Agreement is signed manually, it
may be executed in any number of counterparts,
each of which shall be deemed an original
and all of which together shall constitute
one and the same instrument. If this Agreement
is signed electronically, LOL Interactive's
records of such execution shall be presumed
accurate unless proven otherwise. |
| k. |
Force
Majeure. |
| |
Neither
party is liable for any default or delay
in the performance of any of its obligations
under this Agreement (other than failure
to make payments when due) if such default
or delay is caused, directly or indirectly,
by forces beyond such party's reasonable
control, including, without limitation,
fire, flood, acts of God, labor disputes,
accidents, acts of war or terrorism, interruptions
of transportation or communications, supply
shortages or the failure of any third party
to perform any commitment relative to the
production or delivery of any equipment
or material required for such party to perform
its obligations hereunder. |
| l. |
Government
Regulations. |
| |
Customer
may not export, re-export, transfer or make
available, whether directly or indirectly,
any regulated item or information to anyone
outside the United States in connection
with this Agreement without first complying
with all export control laws and regulations
which may be imposed by the United States
government and any country or organization
of nations within whose jurisdiction Customer
operates or does business. |
| m. |
Marketing. |
| |
Customer
agrees that during the term of this Agreement
LOL Interactive may publicly refer to Customer,
orally and in writing, as a customer of
LOL Interactive. Any other public reference
to Customer by LOL Interactive requires
the written consent of Customer.
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|
| 15. |
Definitions. |
| |
For
purposes of this Agreement, the following terms
have the meanings specified below: |
| |
| a. |
"Agreement" means each
contract created between LOL Interactive
and Customer for the provision of Services
consisting of an Order, the applicable Service
Description and these Terms of Service. |
| b. |
"Customer
Content" means all data, graphics,
text, names, marks, logos, hypertext links
to other Web sites and other information
incorporated in, transmitted through or
published or displayed on the Customer Web
site within the Youth Glue Web site. |
| c. |
"Customer Web site" means
Customer's site on the World Wide Web portion
of the Internet that LOL Interactive hosts
under this Agreement. |
| d. |
"End
User" means any Person who accesses
or uses the Customer Web site via the Internet.
|
| e. |
"LOL
Interactive Technology" means LOL
Interactive's proprietary technology, including,
without limitation, LOL Interactive services,
Youth Glue services, software tools, hardware
designs, algorithms, software (in source
code and object code forms), user interface
designs, architecture, class libraries,
objects and documentation (both printed
and electronic), network designs, know-how,
trade secrets and any related intellectual
property rights throughout the world (whether
owned by LOL Interactive or licensed to
LOL Interactive from a third party), and
also including any derivatives, improvements,
enhancements, updates, modifications or
extensions of LOL Interactive Technology
conceived, reduced to practice or developed
during the term of this Agreement by either
party. |
| f. |
"Person"
means any individual, partnership, joint
venture, corporation, limited liability
company, trust, unincorporated association
or organization, or government or any agency
or political subdivision thereof.
|
| g. |
"Proprietary
Information" means all technical,
business and other information of a party
(i) that is not generally known to the public,
(ii) that derives value, economic or otherwise,
from not being generally known to the public
or to other Persons who can obtain value
from its disclosure or use, and (iii) which
information is subject to efforts that are
reasonable under the circumstances to maintain
the secrecy thereof. |
| h. |
"Order"
means the Order submitted by the Customer
to LOL Interactive for Services, whether
such Order is submitted online through the
Youth Glue's Web site or on a written Order
form. |
| i. |
"Prepaid
Plan" means Service provided by
LOL Interactive to Customer where the Order
provides that the Customer must pay for
the Service in advance for the Initial Term.
"Non-Prepaid Plan" means any Service provided
by LOL Interactive to Customer that is not
a Prepaid Plan. |
| j. |
"Termination
Charge" means, with respect to
Non-Prepaid Customers only, as of any date
of calculation, an amount equal to one hundred
percent (100%) of the fees that would become
due over the balance of the then-current
Term. |
| k. |
"Terms
of Service" means these Terms of
Service, as the same may be modified, altered
or amended from time to time by LOL Interactive.
|
| l. |
"Service"
means either Regular Service or Optional
Service. "Regular" means the Service provided
by LOL Interactive in response to an Order
whereby LOL Interactive provides the Customer
with specified connectivity, storage space
and bandwith for the data hosting of a Customer
Web site as more particularly described
in the applicable Service Description. |
| m. |
"Optional
Service" means any additional Service
(other than Regular Service) LOL Interactive
may provide in response to an Order, as
more particularly described in the applicable
Service Description. |
| n. |
"Service
Description" means the applicable
documents made available by LOL Interactive
to Customer to describe the applicable Services
at the time the Order is accepted by LOL
Interactive. |
| o. |
"Term"
means the duration of any Agreement between
LOL Interactive and Customer. With respect
to Regular Services, the "Initial Term"
is the initial term specified in the Order
and the Term continues beyond the Initial
Term for any renewal period as specified
in Section 3. . With respect to Optional
Services, the "Term" begins when LOL Interactive
accepts the Order and ends on the first
to occur of (i) LOL Interactive's completion
of performance, or (ii) the earlier termination
of the Order in any manner permitted by
these Terms of Service. |
|
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