Ownership Acknowledgment. All Intellectual Property in or relating to the Website and all modifications, adaptation, derivative works and enhancements thereto, are owned exclusively by Gerald Klickstein, the owner/publisher of the Website (the “Company”), except where otherwise indicated. All rights not expressly granted herein are reserved to the Company.
Trademarks. You will not use, distribute, or otherwise disseminate the Company’s Marks without the express written permission of the Company.
Termination of Access.
3.1 The Company may terminate this Agreement at any time upon the giving of written notice (which may be given solely electronically by email) to You in the event that You materially breach any of Your obligations under this Agreement.
3.2 This Agreement may automatically terminate without notice or a right to cure upon Your assignment for the benefit of creditors or any commencement by or against You for bankruptcy, insolvency, or reorganization pursuant to bankruptcy laws or laws of debtor's moratorium.
3.3 Upon any termination of this Agreement You shall immediately cease all use of the Website, and all rights and licenses granted by the Company hereunder to You shall immediately cease. You shall promptly notify all Authorized Parties of the termination of this Agreement.
3.4 The provisions of Sections 1, 2, 3.3, and Sections 4 through and including 8 shall continue and survive in full force and effect to the extent so provided therein.
Warranties and Covenants.
5.1 You. You covenant that You shall: (i) abide by this Agreement; (ii) use the Website in compliance with all applicable federal and state laws, rules, and regulations; (iii) not post on or provide for the Website any material that infringes the trademarks, copyrights or other intellectual property rights of third parties or that violates a right of privacy or constitutes defamation; (iv) comply with all Documentation provided by the Company; (v) not alter, recast, revise, modify, translate, reformat, reverse engineer, compile, disassemble, or decompile the Website or any portion thereof; (vi) make no representations to Authorized Persons or third parties regarding the Website or the Company's Websites that are not expressly authorized to be made in this Agreement; (vii) not use the Company's Marks or any other Company Intellectual Property in any manner except as permitted under this Agreement; and (viii) cooperate with the Company in its provision of the Website including providing such technical assistance and information as reasonably requested by the Company.
5.2 Disclaimer. Other than as expressly set forth above, neither the Company nor You makes any other express or implied warranties of any kind whether oral or written, and the Company expressly disclaims any and all implied warranties, including the implied warranties of accuracy, fitness for a particular purpose and merchantability, any implied warranty against infringement, and any other implied warranties. There is no warranty that the website or any efforts or information provided by the Company will fulfill any of Your particular purposes or needs; nor is there a warranty that any website You access via a link on the Company’s website will fulfill your needs or provide the services or products that you expect. Except as expressly set forth in this agreement, the Company shall not be liable for the quality or accuracy of information provided by You or third parties for or via the website nor for any inaccurate results due to the Company’s processing of any such data. The Company makes no guarantee or warranty of timeliness of delivery of the website to You or the processing of any information or data provided by You. Although MusiciansWay.com includes information about musicians’ health, the ideas presented on this site and on any site accessed via a link on MusiciansWay.com are not offered as substitutes for expert medical or psychological advice. The Company recommends that before you make decisions concerning your health and prior to beginning any exercise, diet, or wellness regimen, you should consult a healthcare professional.
Limitation of Liability.
6.1 Subject to Section 6.3 below: (i) Your sole remedy in the event of a claim against the Company for breach of this agreement shall be for the Company to repair, replace, or otherwise correct the website; and (ii) in no event will the Company, its subsidiaries and/or associated companies, be liable to You under this agreement or otherwise, regardless of the form of claim or action, in an amount that exceeds the aggregate amount of payments you actually paid to the Company under this agreement during the twelve (12) month period immediately preceding the event giving rise to the claim; and (iii) in no event will the Company, its officers, directors, employees, agents, subsidiaries, or associated companies be liable for any compensatory damages to You, any of Your officers, directors, stockholders, successors or assigns, or any third party, under this agreement or otherwise, regardless of the form of claim or action.
6.2 Subject to Section 6.3 below, in no event will either party, its subsidiaries or associated companies be liable to the other party or any third party for special, punitive, incidental, indirect, consequential, or exemplary damages or costs (including legal fees or expenses other than those awarded under this agreement), or loss of goodwill or profit in connection with the supply, use, or performance of or inability to use the website or any portion thereof, loss of data, false or erroneous information transmitted via the Internet, or in connection with any claim arising from this agreement, even if such party, its subsidiaries or associated companies were advised of the possibility of such damages or costs.
6.3 Exceptions. The limitations of liability set forth in Sections 6.1 and 6.2 above shall not apply: (i) where the party seeking the benefit of the limitation has engaged in willful misconduct; or (ii) to claims that are actually covered by insurance, in which case such claims shall be limited to the actual insurance coverage less any deductible. Notwithstanding any other provisions, no liability of the Company shall arise for failure to provide the Website if due to any cause beyond the Company's reasonable control.
6.4 Time for action. No action arising out of this Agreement, regardless of form, may be brought by either party or any third party more than one (1) year after the date the cause of action occurred.
8.1 Definitions. Capitalized terms used in this Agreement and the Exhibits shall have the meaning set forth in Exhibit A "Definitions," hereby adopted and incorporated herein.
8.2 Applicable Law. This Agreement has been made, executed, and delivered in North Carolina. The parties mutually stipulate and agree that this Agreement is in all respects (including, but not limited to, all matters of interpretation, validity, performance, and breach) to be exclusively construed, governed, and enforced in accordance with the laws of North Carolina and all applicable federal laws of the United States of America, as from time to time amended and in effect. The parties agree that the Uniform Commercial Code - Article 2 Sales, the United Nations Convention on Contracts for the International Sale of Goods, and the Electronic Signatures in Global and National Commerce Act shall not apply in any respect to this Agreement or the parties.
8.3 Relationship of the Parties. Except as expressly provided herein, nothing in this Agreement shall be: (i) deemed to constitute a partnership or joint venture between the parties or be deemed to constitute one party as agent of the other, for any purpose whatever, and neither party shall have the authority or power to bind the other, or to contract in the name of or create a liability against the other, in any way or for any purpose; or (ii) construed as a limitation on the powers or rights of either party to carry on its separate businesses for its sole benefit, including and not limited to the ability to enter into similar agreements with third parties, and each party shall take no action, directly or indirectly, which may prevent or hinder the other party from fulfilling its obligations to third parties.
8.4 Assignment. Either party may assign this Agreement at any time without a fee and without the consent of the other party to a corporate successor in interest, acquiror, or other entity that purchases or obtains substantially all of the assets of such party, provided that such transferee agrees in writing to be bound by the terms and conditions of this Agreement in the place of such party. Except as set forth above, You may not assign or delegate this Agreement without the Company's prior written consent, which shall not be unreasonably withheld.
8.5 Notice. All written communications between the parties shall be sent by electronic mail or facsimile. All such communications shall be deemed received upon the earlier of: (i) actual receipt or actual delivery to the address specified in accordance with this Agreement; (ii) three days after notice is deposited in a proper mail receptacle; or (iii) upon receipt by the transmitting party of confirmation or answer-back (if delivery is by facsimile or electronic mail). By written communication, either party may designate different contact information for purposes hereof.
8.8 Force Majeure. If either party's performance of this Agreement, other than the payment of monies, is prevented, restricted or interfered with by reason of Force Majeure, such party shall, upon giving prior written notice to the other party, be excused from performance to the extent of the Force Majeure, provided that the party so affected shall use its best efforts to avoid or remove the causes of Force Majeure, and shall continue performance hereunder with the utmost dispatch whenever the Force Majeure is removed.
8.9 Severability. If any provision hereof is declared invalid or unenforceable by a court of competent jurisdiction, then the meaning of that provision will be interpreted, to the extent feasible, in a way that renders it enforceable or valid. If no feasible interpretation is possible, the provision will be severed from this Agreement and the remainder of this Agreement will remain in full force and effect.
"Authorized Persons" shall mean all persons who access or use the Website with Your consent for purposes specifically related to Your internal business use of the Website.
"Business Information" shall mean all information referring or relating to You and Your business, including data about your business or customers of your business.
"Confidential Information" means in respect of the Company, the Website, all software provided in connection with the Website (including both source and object code), and discussions between the parties concerning such software, all user names and passwords for accessing a portion of the Website, the Documentation, all amendments, enhancements, and derivative works to such software and/or materials; and in respect of both parties, it also means the terms and conditions of this Agreement, and information that is of value to the Discloser and is treated as confidential. Confidential Information specifically shall not include Business Information or any information established to be excluded from this definition under Section 4.2.
"Discloser" refers to the party disclosing Confidential Information under this Agreement, whether such party is the Company or You and whether such disclosure is directly or through Discloser's employees or agents.
"Documentation" shall mean all information provided by the Company describing the features, basic use, and operation of the Website.
"Force Majeure" shall mean nonperformance of this Agreement by a party resulting from war, revolution, civil commotion, riot, fire, flood, disaster, acts of public enemies, blockade or embargo, strikes, any law, order, proclamation, regulation, ordinance, demand, or requirement having a legal effect of any government or any judicial authority or representative of any such government, or any other act whatsoever, whether similar or dissimilar to those referred to above, which is beyond the reasonable control of the party affected.
"Intellectual Property" shall mean copyrights, trademarks, patents, trade secrets, and other proprietary rights recognized under applicable law.
"Marks" shall collectively mean the trademarks, tradenames, trade dress, servicemarks, or other identifying symbols of a party, whether or not registered.
"Recipient" refers to the party receiving any Confidential Information under this Agreement, whether such party is the Company or You and whether such disclosure is received directly or through Recipient's employees or agents.
"Term" shall mean the length of time from the Effective Date through the effective date of a termination of this Agreement in accordance with its terms.
"You" or "Your" shall collectively mean You and/or Authorized Persons.
"Website" shall mean the worldwide web pages the Company permits You to access and use.