1. DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITY.
The Company licenses the use of the SNNWire.com service (“Service”) and SNNWire.com software (“Software”) to the Issuer Member (“Issuer”) as per this Terms Of Service (“TOS”), which Issuer agrees to upon the registration of the Service or acceptance of the video software control files. The Company’s warranties set forth in this Agreement are exclusive and are in lieu of all other warranties, express or implied, including but not limited to, the implied warranties of merchantability and fitness for a particular purpose. The Company’s liability to Issuer under any cause of action shall not exceed the amount of the fees paid by Issuer hereunder. Neither party shall be liable to the other for any incidental, special, indirect or consequential damages, however caused, including but not limited to loss of profits or loss of data, even if the parties have knowledge of the possibility of such damages
Information, data, text, music, sound, photographs, graphics, video, messages or other materials (“Content”), whether publicly or privately transmitted, are the sole responsibility of the person from which such Content originated. Issuer, and not The Company, is entirely responsible for all Content that is emailed, transmitted or otherwise made available via the Software. The Company does not control the Content transmitted via the Software and, as such, does not guarantee the accuracy, integrity or quality of such Content. Issuer understands that by using the Software, they may be exposed to Content that is offensive, indecent or objectionable. Under no circumstances will The Company be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content, emailed, transmitted or otherwise made available via the Software. Issuer agrees not to email, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable utilizing the Software.
3. HOSTING SERVICES.
The Company’s Hosting Services are not to be used for distributing unauthorized Content as defined in this TOS. The Company reserves the right to restrict bandwidth use, limiting the amount of concurrent recipients, and suspend or terminate any violating licenses. Bandwidth restrictions may result in message recipients experiencing a delay of video being streamed, increased video buffering times, degradation in video quality and/or inability to view video.
4. COMPLETE AGREEMENT.
This Agreement is the exclusive statement of the agreement between the parties with respect to its subject matter and as of its date supersedes all prior agreements, negotiations, representations’ and proposals, written or oral, relating to its subject matter. Neither party shall be bound by or be liable to the other party for any representation, promise, or inducement made by any agent or person in the other’s employ. In the event of any inconsistency between this Agreement and any other form used by either party in connection herewith, the terms of this Agreement shall govern.
5. GENERAL PROVISIONS:
a) No delay, failure, or waiver by either party to exercise any right or remedy under this Agreement, and no partial or single exercise, shall operate to limit, preclude, cancel, waive, or otherwise affect such right or remedy, nor shall any single or partial exercise limit, preclude, impair, or waive any further exercise of such right or remedy or the exercise of any other right or remedy.
b) This Agreement shall be governed by and construed in accordance with the laws of the State of New York, applicable to contracts wholly negotiated, executed and to be performed in such State.
c) Any controversy or claim arising from or relating to this Agreement or the breach thereof shall be settled by arbitration in New York in accordance with the rules then arising of the American Arbitration Association. All limitations of liability contained on this Agreement shall apply to any arbitration brought pursuant to this paragraph. The decision of an arbitrator or tribunal of arbitrators shall be final and binding upon the parties and enforceable in any court of complaint jurisdiction in the United States.
d) Failure of either party to exercise in any respect any of the rights provided herein shall not be deemed a waiver of any right hereunder.
e) This Agreement and the rights and duties hereunder shall not be assignable except upon the written consent of the other party.
f) Each party acknowledges that it has read this Agreement, understands it, agrees to be bound by its terms and agrees that it is the exclusive and complete statement of the agreement between the parties and supersedes and merges all prior proposals, understandings and agreements, whether oral or written, relating to the subject matter hereof.
g) Issuer hereby understands and agrees that The Company shall have no obligation for any loss of or damage to any information or materials, including without limitation the recorded messages created with the Software as described above. Issuer further understands and agrees that The Company shall not be liable for any indirect, special, incidental, consequential or exemplary damages arising under this Agreement or in connection with the software, regardless of whether advised beforehand of the possibility of such damages. In no event shall any liabilities under any cause of action exceed the amount of the fees paid by Issuer hereunder, regardless of the cause of action, in tort, contract or otherwise. Issuer understands and agrees that the foregoing limitations are a material term of this agreement, and that The Company would not enter into this Agreement without such limitations.
h) If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions shall be in no way affected or impaired thereby and shall remain in full force and effect. Such invalid, illegal or unenforceable provision shall be severed from this Agreement and the remaining terms shall be separately enforceable.
i) Issuer agrees to indemnify and hold The Company, and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of content in Issuer emails, transmits or makes available through the Software, Issuer’s use of the Software, Issuer’s connection to the Software, Issuer’s violation of the TOS, or Issuer’s violation of any rights of another.
j) Issuer expressly understands and agrees that The Company shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if The Company has been advised of the possibility of such damages), resulting from: (i) the use or the inability to use the Software; (ii) the cost of procurement of substitute goods and services resulting from any goods, data, information or software and services purchased or obtained or messages received or transactions entered into through or from the Software; (iii) unauthorized access to or alteration of The Company’s transmissions or data; (iv) statements or conduct of any third party on the Software; or (v) any other matter relating to the Software.
k) Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations of Section m) may not apply to The Company.
l) Notices to Issuer may be made via either email or regular mail. The Software may also provide notices of changes to the TOS or other matters by displaying notices or links to notices to Issuer generally on the Software.
m) Stock News Now logos and other SNN branded logos, Services and Software names are trademarks of Stock News Now Incorporated. Without The Company’s prior written permission, Issuer agrees not to display or use in any manner, The Company’s trademarks except where it is displayed as part of The Company’s service.
n) Issuer’s performance hereunder and use of the Software shall at all times comply with all applicable laws, rules and regulations, and Issuer shall fully indemnify, defend and hold harmless The Company against any violation thereof.
o) The parties agree that any breach or threatened breach of this Agreement by the Issuer is likely to cause The Company damage that is not fully reparable by payment of damages, and further agree that in such cause, The Company shall be entitled to seek and obtain injunction or other equitable relief to protect its rights hereunder.