Purpose of Site. Interactive Horizons, hosts business and personal streaming media and related components to be used to supplement the user’s (“Customer’s”) web site. Interactive Horizons’s services include, but are not limited to: the conversion of Customer’s multimedia materials into a streaming video or audio format (“streaming media”), the hosting of Customer’s streaming media and related components on Interactive Horizons’s server (that portion of the server allocate for Customer’s use is hereafter referred to as “Customer’s Allotted Space”) and the granting of permission to link Customer’s web site to Customer’s Allotted Space. Interactive Horizons may provide any other services, as necessary, for the operation of its business.
Length of Agreement. The term of this Agreement shall be from the effective Date of the Agreement or for the specified term of service as identified by the “Package” that Customer subscribes to, unless a written Interactive Horizons agreement (Estimate/Quotation Document) accompanies these Terms and Conditions, and if so, the term of this Agreement shall be as specified in the written “Interactive Horizons Agreement.” For purposes of this Agreement, the “Effective Date” shall be the date on which Customer submits order for service.
Interactive Horizons Agreement. For large -level accounts (i.e.: not found on Interactive Horizons’s Web site), or for special services, or customized solutions, a written Interactive Horizons Agreement may accompany these Terms and Conditions. If such document accompanies these Terms and Conditions, the terms of the Interactive Horizons Agreement shall override any inconsistencies or contradictory Terms and Conditions that may arise between the two documents.
Encoding – Conversion of Customer’s Media. Interactive Horizons, upon Customer’s request and subject to all payment requirements and any other conditions described herein, shall convert, through its own efforts and those of its sub-contractors, Customer’s multimedia materials into a streaming video and/or audio format. Customer shall provide Interactive Horizons with a copy of the materials to be converted in the format as specified on the Customer’s quote submitted to Interactive Horizons. Customer should not provide Interactive Horizons with the original of the materials to be converted and, in no instance, shall Interactive Horizons be liable to Customer for direct damages for loss of, or other damage to, Customer’s materials greater than the cost of the medium on which the materials were transmitted to Interactive Horizons. Customers utilizing this service shall be bound by the terms and conditions of both the Encoding Agreement and this Agreement. Customer shall retain all rights, including all trademark, licensing and copyright rights, in both the original multimedia materials as well as the streaming media materials.
Streaming – Space Support and Maintenance. Interactive Horizons agrees, subject to the terms of this Agreement, to allow Customer to use and occupy Customer’s Allotted Space on Interactive Horizons’s servers. Subject to the terms of this Agreement, Interactive Horizons agrees to provide Customer with those support services necessary to allow third persons to access and view Customer’s media on Customer’s Allotted Space as per the terms of this Agreement.
Linking Services. Interactive Horizons shall provide Customer with all necessary information to construct, and maintain, a hyperlink from Customer’s web site to Customer’s Allotted Space on Interactive Horizons’s server. Interactive Horizons shall use all reasonable commercial efforts to make Customer’s Allotted Space available for viewing by third parties 24 hours each day, seven days per week. Customer shall have the responsibility to notify Interactive Horizons if Customer’s hyperlink to Interactive Horizons’s service is inoperable.
Price and Payment. Customer shall pay Interactive Horizons monthly recurring fees, in the amounts indicated current pricing or, if a written Interactive Horizons Agreement accompanies this document, as indicated by those terms, which include charges for use and occupancy of Customer’s Allotted Space and Bandwidth allocation.
Method of Payment. Interactive Horizons accepts payment by Cheque, Bank Transfer, Postal Money Order, or Credit Card. All funds shall be in Canadian Dollars, as specified.
Late Payment. Customer Balances (Amounts) past due by 45 days are subject to Interactive Horizons’s late payment fee, which is 5% of the standard monthly rate. Amounts past due by 60 days are subject to immediate closure without notice. Interactive Horizons will make reasonable efforts to notify Customer, in advance, of pending closure due to non-payment. Interactive Horizons will make reasonable efforts to preserve the content off-line, following account closure, for 30 days. If content is not claimed, Interactive Horizons reserves the right to destroy the content on Interactive Horizons’s system to make space for new accounts. Interactive Horizons charges a $35(CDN) Service Fee for each check returned (rejected) by the bank.
Collection Agency. Customer Balances (Amounts) past due by 60 days are subject to submission to Interactive Horizons’s Collection Agency, which shall operate in compliance with Federal, Provincal and Local laws and Regulations. Customer Accounts will incur a Collections Service Fee of $75(CDN), which is in addition to the Late Payment Fee described in Section 6(b), to reimburse Interactive Horizons for the cost in Collections Service. Customer may also incur additional further collection procedures.
Content of Customer’s Materials. Interactive Horizons does not actively monitor the Customer’s material nor does Interactive Horizons exercise any editorial control over the content of any material that the Customer uploads into Interactive Horizons’s service. However, Interactive Horizons reserves the right to remove any and/or all of the Customer’s material from Interactive Horizons’s service that are, in Interactive Horizons’s discretion, potentially illegal, a violation of Trademark and/or Copyright, or may subject Interactive Horizons to liability, or violate the acceptable use policy stated below in this Agreement. Upon removal of the material, Interactive Horizons shall notify Customer of the removal of the materials, as well as the reason for removal. In no instance shall Interactive Horizons be liable for the removal of the materials.
Music License Fees. Customer shall be responsible for insuring that Customer’s content will comply with all applicable licensing requirements by federal, provincial, state, local, regulated and contractual music licensing fees, including, without limitation, all BMI, ASCAP, and SESAC licensing requirements and fees.
Acceptable Use. This Agreement is designed to help protect Interactive Horizons’s customers and the Internet community from irresponsible or illegal activities. In the event that Customer violates this Agreement through improper use of the service, Interactive Horizons reserves the right to terminate the service without notice. Interactive Horizons shall make reasonable efforts to advise Customer of the inappropriate behavior and offer any corrective action necessary. Interactive Horizons reserves the right to immediately terminate its service to Customer for any flagrant or repeat violations of this Agreement. Incidents that may cause the account to be terminated include, but are not limited to:
- a) Harassment: using the service to threaten or harass.
- b) Using the service for any purpose other than which it is intended.
- c) Attempting to impersonate any person, using forged headers or other identifying information in a defamatory way.
- d) Violation of Trademark and/or Copyrighted material. Upon receipt of a legal notice to “Cease” hosting of material, Interactive Horizons will remove all related material until Customer has satisfactorily resolved the dispute.
- e) Uploading any programs that may cause a disruption to the service.
- f) Untimely payment of any and all amounts due.
- g) Any action that violates the laws of applicable local, state, federal or international governmental bodies.
- h) Sharing the account with anyone or re-selling the service.
Interactive Horizons will cooperate with any and all appropriate legal authorities in investigating claims of illegal activity, including, but not limited to illegal transfer or use of copyrighted material or other illegal activity. Interactive Horizons reserves the right to monitor or view material uploaded by Customer onto Interactive Horizons’s service at any time for the purpose of ensuring compliance with this Agreement.
Live Events. Customer agrees not to use the service to host “live events” without the express written permission of Interactive Horizons and, if such consent is given, only pursuant to the terms and conditions designated in the written permission from Interactive Horizons or as per the Interactive Horizons Agreement. In the event that Customer uses the service to host “live events” without the express written consent of Interactive Horizons, Interactive Horizons reserves the right to remove Customer’s materials from Interactive Horizons’s service, or otherwise block access by third-parties to Customer’s materials.
Disk and Bandwidth Utilization. Interactive Horizons’s services specifies limits on bandwidth and disk utilization. By accepting this Agreement, Customer agrees to be bound by the service description applicable to its account. Interactive Horizons reserves the right to remove material and/or terminate or suspend the account due to any violation of bandwidth or utilizations limits (“overage”) that Interactive Horizons deems inappropriate or excessive. Repeat violations of the allotted disk and/or bandwidth utilization may subject account to termination. Customer agrees to pay for all bandwidth and/or disk usage that exceeds their allotment based on the current charges depicted on this site (and no less than one cent per megabyte in data traffic and one dollar per megabyte in disk storage). Interactive Horizons is not responsible to notify Customer of overages and it is the Customer’s responsibility to ascertain these conditions. Interactive Horizons will make reasonable efforts to keep client informed of overages exceeding Customer’s allotment by 200% or more but can not guarantee such notification. Interactive Horizons advises that Customer anticipate the volume of users likely to view their media file in a given month and multiply that by the size of the file to approximate bandwidth usage per month.
Security of Data. Interactive Horizons makes no guarantee and assumes no liability for the security of any data on any server including “secure servers.” Customer agrees to maintain separate backups of any data other than the backup systems that Interactive Horizons has in place and Interactive Horizons shall not be liable for the loss, or modification, of any Customer materials due to any breach of security.
Continuity of Service. Interactive Horizons makes every effort to keep its service up and running. However, Interactive Horizons cannot and will not guarantee 100% uptime of its service. In no event shall Interactive Horizons be liable for any disruption of service of duration of less than four hours. Interactive Horizons will reimburse customer, on a daily pro-rated basis upon request, any fees paid to Interactive Horizons for which service was unavailable for duration of four hours or more in any given day.
Cancellation of Service by Interactive Horizons. Interactive Horizons reserves the right to cancel the Customer’s account should the Customer fail to adhere to the terms of this Agreement. Should cancellation of the account occur, Interactive Horizons will reimburse client any unused fees (prorated daily), after Interactive Horizons has determined, in its own discretion, that all charges associated with the account have been satisfactorily paid. Upon request of Customer, Interactive Horizons shall return all Customer materials. Interactive Horizons reserves the right to withhold fees, up to the total of any charges associated with the account that have not been satisfactorily paid, if legal action is pending against Interactive Horizons for the misuse of the account or if Interactive Horizons reasonably believes legal action may be brought against Interactive Horizons. Under such conditions, Interactive Horizons may withhold such fees until it has been determined that any legal action brought against Interactive Horizons has been satisfactorily resolved and all charges have been satisfactorily paid.
Cancellation of Service by Customer. Customer shall have the right to terminate this Agreement upon thirty (30) days written notice to Interactive Horizons, unless a written Interactive Horizons agreement specifies otherwise. Interactive Horizons shall reimburse client any unused fees (prorated daily), after Interactive Horizons has determined, in its own discretion, that all charges associated with the account have been satisfactorily paid. Customers who have subscribed to an Annual or Semi-Annual Subscription Package, and who seek to cancel their subscription prior to the expiration of their term, shall have their account recalculated based upon the month-to-month rate and any remaining unused fees will be reimbursed to Customer. Prior to cancellation of service, Customer is responsible for removing their materials from their allotted space on Interactive Horizons’s servers and Interactive Horizons will not be responsible for storage and preservation of Customer’s materials upon receipt of request for cancellation. Interactive Horizons reserves the right to withhold fees, up to the total of any charges associated with the account that have not been satisfactorily paid, if legal action is pending against Interactive Horizons for the misuse of the account or if Interactive Horizons reasonably believes legal action may be brought against Interactive Horizons. Under such conditions, Interactive Horizons may withhold such fees until it has been determined that any legal action brought against Interactive Horizons has been satisfactorily resolved and all charges have been satisfactorily paid.
No Other Warranties. INTERACTIVE HORIZONS WARRANTS THAT THE SERVICE WILL OPERATE SUBSTANTIALLY IN CONFORMANCE WITH THE SPECIFICATIONS DEPICTED. TO THE EXTENT PERMITTED BY LAW, INTERACTIVE HORIZONS DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE. THE DURATION OF ANY STATUTORILY REQUIRED WARRANTY PERIOD SHALL BE LIMITED TO THE TERM OF THE LIMITED WARRANTY.
Limitation of Liability. UNDER NO CIRCUMSTANCES WILL INTERACTIVE HORIZONS BE LIABLE TO CUSTOMER FOR DIRECT DAMAGES GREATER THAN THE TOTAL OF ONE MONTH’S FEE CHARGED BY INTERACTIVE HORIZONS FOR THE USE AND OCCUPANCY OF CUSTOMER’S SPACE OR IN THE CASE OF SPECIAL SERVICES, INCLUDING ENCODING SERVICES, THE SUM TOTAL OF PAYMENTS MADE BY CUSTOMER TO INTERACTIVE HORIZONS FOR THE SERVICE FOR WHICH DAMAGES ARE CLAIMED. IN NO EVENT SHALL INTERACTIVE HORIZONS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR OTHER CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS) ARISING OUT OF AND IN RELATION TO THIS AGREEMENT EVEN IF ADVISED BEFORE HAND OF THE POSSIBILITY OF SUCH LIABILITY. UNDER NO CIRCUMSTANCES WILL INTERACTIVE HORIZONS BE LIABLE TO CUSTOMER FOR ANY MARKETING, ADVERTISING, PROMOTIONAL EXPENSES OR ANY EXPENSES RELATED TO THE CUSTOMER’S USE OF INTERACTIVE HORIZONS SERVICE, REGARDLESS OF ANY EVENT, INCLUDING INTERRUPTION OF INTERACTIVE HORIZONS SERVICE, OR INTERACTIVE HORIZONS REMOVAL OF CUSTOMER’S MATERIAL.
Taxes. In the event that they are applicable, Customer shall be solely responsible for the payment of all sales, use and similar taxes relating to their use of Interactive Horizons’s services.
Governing Law. The laws of the Province of Ontario, Canada; shall govern the validity, construction and performance of this Agreement.
Copyright. The entire content of Interactive Horizons’s Service is copyrighted, and all rights are reserved.
Digital Rights Media Service (Pay-Per-View). Customers electing to use Interactive Horizons’s Digital Rights Media Services are subject to this Section’s Terms and Conditions regarding use of the service.
Services. Subject to the terms and conditions of this Digital Rights Media (“DRM”) Service Agreement, including the above “Terms and Conditions” and all Schedules (collectively, the “Agreement”), Interactive Horizons, LLC. (“Interactive Horizons”) agrees to provide during the Term the services identified in Schedule A (the “Services”) for purposes of making Customer’s (also referred to as “Company’s”) content (the “Content”) available for distribution in protected digital format. During the Term, Company may elect to have Interactive Horizons perform additional services at fees to be mutually agreed upon in which event the Services shall be deemed to include such additional services and all terms and conditions of this Agreement shall apply thereto.
Fees. As compensation for providing the Services, Company agrees to pay Interactive Horizons, all applicable fees as set forth in Schedule B, including, without limitation, the following transaction fees as specified in Schedule B: Financial Transaction Fee (“FTF”) for each transaction involving the sale of Content for financial remuneration (a “Financial Transaction”). The FTF shall be calculated by multiplying the selling price of the Content by the rate set forth in Schedule B; and An Information Transaction Fee (“ITF”) for each transaction involving no financial remuneration but which may involve the collection of information in return for the distribution of the Content at no charge to consumers (an “Information Transaction”). The ITF and FTF are hereinafter referred to collectively as the “Transaction Processing Fees”.
Term. This Agreement shall commence upon the execution hereof by both parties duly authorized representatives and will continue on a month-to-month basis or date stated in accompanying document/estimate/proposal. Either party may cancel this agreement in writing by providing thirty-days written notice.
Settlement. Interactive Horizons will make available to Company in electronic or printed format a monthly invoice detailing (a) all Transaction Processing Fees and any other fees or other amounts due and owing by Company to Interactive Horizons for the monthly billing period, and (b) if applicable, any revenues collected by Interactive Horizons on behalf of Company during such period. It is understood that the monthly billing period shall not necessarily be on a calendar month basis but in any event the monthly invoice shall be issued no later than thirty days following the close of the monthly billing period. Settlement (either collection from or remittance to Company) for the invoice amount will occur via check or credit card, initiated by Interactive Horizons, within twenty business days of, but in no event sooner than three business days after, Interactive Horizons’s making the invoice available to Company.
Consumer Disputes; Bad Debt Charge backs. Company will bear all loss associated with all consumer disputes, bad debt charge backs for consumer payments and/or other consumer fraud which results in payment not being collectible. If applicable, Interactive Horizons will attempt to resolve all consumer disputes and will process and attempt to collect any and all bad debt charge backs using its normal procedures for such transactions at Company’s sole expense. Interactive Horizons may hold five percent of sales for 90 days to ensure any and all charge backs have cleared. Interactive Horizons’s expenses and fees associated with Interactive Horizons’s processing of and attempt to collect such charge-backs and attempt to resolve consumer disputes are set forth in Schedule B and will be offset against any amounts due and payable to Company.
Licenses. It may be necessary, for the purposes of enabling Interactive Horizons to perform the Services, that Interactive Horizons have permission to create copies of the work. Solely for purposes of enabling Interactive Horizons to perform the Services pursuant to this Agreement, Company grants to Interactive Horizons a nonexclusive, transferable, worldwide, royalty free right and license to copy, perform, promote, transmit and distribute the Content, in the appropriate digital medium necessary to fulfill the purposes of this Agreement. To provide the Service, Interactive Horizons must delegate some portions of the Service to a third party. Interactive Horizons may, in its sole discretion, delegate and/or sublicense any or all of the foregoing licenses to any third party for the sole purpose of providing the Services on behalf of Interactive Horizons pursuant to this Agreement.
Reservation of Rights. Nothing in this Agreement shall be construed to grant Company any rights, by license, title or otherwise, to any aspect of Interactive Horizons’s intellectual property or to the intellectual property of any third party used in connection with distributing the Content under this Agreement. Nothing in this Agreement shall be construed to grant Interactive Horizons any rights, by license, title or otherwise, to any content of Company other than those rights granted in Section 28(g) for the sole purpose of enabling Interactive Horizons to perform the Services pursuant to this Agreement.
Termination. Either party may terminate this Agreement at any time in the event the other party materially breaches a provision of this Agreement and does not cure the breach within 15 days of receiving notice of the breach. If such function is supported by the digital rights management technology being utilized in connection with a particular piece of Content, following the expiration or earlier termination of this Agreement, consumer access rights to such Content that were obtained during the term of this Agreement shall be maintained for the remainder of the period of such access rights. Such continued access rights are subject to the consumer not being in violation of the license rights to the client software application (if any) used to render the Content. If any Transaction Processing Fees are payable in connection with such continued Content access, Company agrees that Interactive Horizons may, at its option, either invoice Company for such fees (and which invoice or invoices Company agrees to pay in accordance with the applicable provisions of this Agreement) or deduct such Transaction Processing Fees from any amounts retained by Interactive Horizons under the provisions of Section 28(b) hereof. The parties expressly agree that all relevant provisions of this Agreement shall survive expiration or termination during the period of continued access rights.
Representations and Warranties. Representations and Warranties of Both Parties. Each party hereto represents and warrants to the other party that as of the commencement of the Term: such party is legally authorized to bind the entity, which is validly existing and in good standing under the laws of the jurisdiction in which it is organized, with full legal power and authority to carry on its business as it is now being conducted; the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by such party. No other corporate or shareholder action or other proceeding on the part of such party or its shareholders is necessary to authorize this Agreement and the consummation of the transactions contemplated hereby; this Agreement constitutes a valid and binding obligation of such party enforceable against such party in accordance with its terms, except that such enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium, or similar laws now or hereafter in effect relating to creditors’ rights; neither the execution, delivery nor performance of this Agreement nor the consummation of the transactions contemplated hereby will violate any provision of the charter or organizational documents of such party; there is no action, suit, claim, proceeding or investigation pending or, to the best of such party’s knowledge threatened against or affecting such party, at law or in equity, before any foreign or domestic federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, or arbitration proceeding which would materially affect such party’s abilities to enter into this Agreement or to perform its obligations hereunder; the representations and warranties of each party contained herein are true, complete and correct; and the execution and delivery of this Agreement and the performance of each party’s obligations hereunder will not violate any provision of any agreement or other instrument to which such party is a party or is otherwise bound.
Interactive Horizons represents and warrants to Company that to Interactive Horizons’s knowledge, Interactive Horizons owns or has all rights, permission and interests necessary to perform the Services, including, without limitation, the right to use and utilize the technology and intellectual property necessary to process the Content transactions; to Interactive Horizons’s knowledge, the performance of the Services by Interactive Horizons in accordance with this Agreement shall not infringe upon or otherwise violate any third party’s valid United States patent, copyright or other intellectual property right; during the Term, the Services provided by Interactive Horizons under this Agreement shall be provided: (A) in accordance with applicable Canadian federal law and the laws of such other jurisdictions as may be applicable thereto; and (B) by qualified personnel; and Interactive Horizons has subcontracted with a third party that operates for the non-exclusive benefit of Company during the Term one or more clearinghouse facilities for the performance of DRM clearinghouse functions. Interactive Horizons and its agents, third parties, subcontractors, will operate its facilities performing such clearinghouse functions in a manner consistent with information systems industry practices for highly secure, highly available, highly responsive and highly reliable systems as may be established or generally recognized within such industry as standards for such clearinghouses from time to time.
Company represents and warrants to Interactive Horizons that, as of the commencement of the Term, Company has all rights necessary to grant the license in Section 28(g) above and to enter into this Agreement, including, without limitation, all copyright rights in the Content and all rights of publicity with respect to any authors, artists, artwork, text material, images, sound or video provided by Company to Interactive Horizons associated with the Content. Company further represents and warrants that the Content is not defamatory, obscene, or otherwise unlawful in any jurisdiction or country in which it is intended to be distributed, and does not infringe or interfere with any intellectual property, contract, right of publicity, or any other proprietary right of any individual or entity.
Limitation. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT TO THE CONTRARY: (i) THE DRM PRODUCTS AND SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Interactive Horizons DOES NOT WARRANT THAT THE DRM PRODUCTS AND/OR SERVICES WILL MEET THE REQUIREMENTS OF COMPANY OR THOSE OF ANY THIRD PARTY AND, IN PARTICULAR, Interactive Horizons DOES NOT WARRANT THAT THE Interactive Horizons PRODUCTS AND/OR SERVICES WILL BE ERROR FREE OR WILL OPERATE WITHOUT INTERRUPTION.
Survival. The provisions of this Section shall survive the termination or expiration of this Agreement.
(a) Interactive Horizons: Indemnification. Interactive Horizons shall indemnify and hold Company and all of its officers, directors, agents, shareholders, representatives, attorneys and employees (the “Company Parties”) harmless from any and all liability, judgments, costs, damages, claims, suits, actions, proceedings, expenses and/or other losses, including reasonable legal fees (collectively, “Claims”) or portions thereof, arising out of or resulting from controversies or litigation asserted by any third party against the Company Parties arising directly or indirectly from: (i) Interactive Horizons’s material breach of any of its obligations under this Agreement, or its representations and warranties set forth herein; and (ii) the failure of any of the representations or warranties made by Interactive Horizons herein to be true.
(b) Company Indemnification. Company shall indemnify and hold Interactive Horizons, its designated third parties and licensors of underlying platform technology utilized by Interactive Horizons in performing the Services and all of their officers, directors, agents, shareholders, representatives, attorneys and employees (the “Interactive Horizons Parties”) harmless from any and all Claims or portions thereof, arising out of or resulting from controversies or litigation asserted by any third party against the Interactive Horizons Parties arising directly or indirectly from: (i) Company’s material breach of any of its obligations, representations or warranties hereunder; (ii) any combination of Interactive Horizons and its licensors’ technology with any product, technology or service of Company or of any third party where such Claim would have been avoided in the absence of such combination; and (iii) any Content distributed by Company pursuant to the terms of this Agreement.
(c) Third Party Claims. In case any Claim is brought by a third party for which Claim indemnification is or may be provided hereunder, the indemnified party shall provide prompt written notice thereof to the other party. Where obligated to indemnify such Claim, the indemnifying party shall, upon the demand and at the option of the indemnified party, assume the defence thereof (at the expense of the indemnifying party) within 30 days or at least ten days prior to the time a response is due in such case, whichever occurs first, and/or, alternatively upon the demand and at the option of the indemnified party, pay to such party all reasonable costs and expenses, including reasonable attorneys’ fees, incurred by such party in defending itself. The parties shall cooperate reasonably with each other in the defence of any Claim, including making available (under seal if desired, and if allowed) all records reasonably necessary to the defence of such Claim, and the indemnified party shall have the right to join and participate actively in the indemnifying party’s defence of the Claim. Each party shall be entitled to prior notice of any settlement of any Claim to be entered into by the other party and to reasonable approval of a settlement to the extent such party’s rights would be directly and materially impaired. Without limiting the foregoing, in the event of any Claim or threatened Claim of infringement involving a portion of any technology and/or the Services: (i) upon Company’s request and at Interactive Horizons expense, Interactive Horizons will use its best efforts to procure the right or license for Company to continue to use and otherwise exploit in accordance with the terms hereof such portion of the technology and/or Services on commercially reasonable license terms; or (ii) at Interactive Horizons’s sole discretion, Interactive Horizons and its licensors may modify or alter (to the extent that Interactive Horizons or its licensors has rights to so modify or alter), or delete any such portion of the technology and/or Services, as the case may be, so as to make such portion of the technology and/or Services non-infringing while maintaining substantially comparable functionalities, integrity, capabilities and interoperability of such parts or modules of the technology and/or Services that are material to Company’s then-current or demonstrably anticipated use hereunder. If options (i) and (ii) are not achievable as to such portion: (1) Company may terminate the rights and licenses granted hereunder in its sole discretion; or (2) to the extent Interactive Horizons used reasonable commercial efforts to obtain a license or modify the technology and/or Services as set forth in subsections (i) or (ii), and Interactive Horizons is reasonably exposed to liability from Company’s continued use of such portion of the technology and/or Services, Interactive Horizons may in its discretion terminate the rights and licenses granted hereunder with respect to such portion.
(d) Survival. The provisions of this Section shall survive the termination or expiration of this Agreement.
Potential Liability. Interactive Horizons reserves the right to refuse to provide Services with respect to any piece of Content if Interactive Horizons reasonably believes the distribution of such piece of Content exposes Company and/or Interactive Horizons to potential legal liability in any country. Interactive Horizons’s decision to refuse to provide Services shall in no way affect Company’s sole responsibility for the Content as addressed in this Agreement.
Company Obligations. Company hereby covenants and agrees that all transactions facilitated through the use of Interactive Horizons and its licensors’ technology in any way will at all times be cleared through Interactive Horizons and/or its licensors’ facilities providing clearinghouse services. Company further covenants and agrees that any use by Company of Interactive Horizons and/or its licensors’ trademarks and any changes made to the design or content of any page of a website provided by Interactive Horizons or its licensors shall be in accordance with guidelines (as same may be updated from time to time) provided by Interactive Horizons or its licensors.
LIMITATION OF LIABILITY. EXCEPT AS SET FORTH IN THE INDEMNIFICATION PROVISIONS HEREOF, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, ITS AGENTS, AFFILIATES, CUSTOMERS, OR ANY OTHER PERSONS, FOR ANY LOST PROFITS OR CONSEQUENTIAL DAMAGES, ARISING OUT OF THE BREACH OF THIS AGREEMENT. Interactive Horizons SHALL NOT BE LIABLE FOR ANY LOSS SUFFERED AS THE RESULT OF A BREACH OF SECURITY, WHETHER SUCH BREACH RESULTS FROM THE DELIBERATE, RECKLESS OR NEGLIGENT ACTS OF ANY THIRD PARTY OR OTHERWISE. IN NO EVENT WILL INTERACTIVE HORIZONS’S LIABILITY FOR ANY AND ALL CLAIMS, IN THE AGGREGATE, ARISING OUT OF, RELATING TO OR IN CONNECTION WITH THIS AGREEMENT OR THE PERFORMANCE OF THE SERVICES (OR ANY RELEVANT TECHNOLOGY) EXCEED THE AMOUNT INTERACTIVE HORIZONS HAS RECEIVED FROM COMPANY UNDER THIS AGREEMENT DURING THE TERM HEREOF.
UNDER NO CIRCUMSTANCES SHALL INTERACTIVE HORIZONS BE LIABLE FOR ANY UNAUTHORIZED USE BY COMPANY OF ANY CONTENT OF ANY THIRD PARTY, OR ANY DEVELOPMENT, DISTRIBUTION OR USE OF ANY CONTENT THAT IS DEFAMATORY, SLANDEROUS, LIBELOUS OR OBSCENE, THAT GIVES RISE TO ANY BREACH OF CONTRACT INVOLVING ANY THIRD PARTY OR TO ANY BUSINESS TORT OR SIMILAR CLAIM OF A THIRD PARTY OR ANY VIOLATION OF ANY FOREIGN, FEDERAL, STATE OR LOCAL STATUTE OR REGULATION, OR THAT OTHERWISE CAN BE REASONABLY LIKELY TO EXPOSE INTERACTIVE HORIZONS OR INTERACTIVE HORIZONS PARTIES TO CRIMINAL OR CIVIL ACTIONS.
UNDER NO CIRCUMSTANCES SHALL INTERACTIVE HORIZONS BE LIABLE FOR ANY UNAUTHORIZED USE BY ANY THIRD PARTY THAT COPIES OR CAPTURES COMPANY’S CONTENT BY WAY OF EMPLOYING SUCH DEVICES THAT ENABLE CONTENT TO BE RECORDED DURING PLAYBACK AND ARCHIVED AS AN UNSECURE FILE, AND POSSIBLY REDISTRIBUTED WITHOUT AUTHORIZATION. INTERACTIVE HORIZONS AND ITS LICENSORS’ TECHNOLOGY HAVE TECHNICAL LIMITATIONS THAT CANNOT PREVENT A USER FROM COPYING THE CONTENT DURING PLAYBACK.
THE PROVISIONS OF THIS SECTION SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT.
Public Relations. Neither party will issue any press release (other than press releases of either party that contain previously approved “boilerplate” mention of the other party), nor otherwise disclose any information concerning this relationship or the Agreement without the prior written consent of the other. The parties agree that a joint press release regarding the establishment of their relationship is appropriate and that each will dedicate appropriate resources to this effort.