NOW, THEREFORE, for and in consideration of the premises and the mutual promises of the parties, and the mutual benefits they will gain by the performance thereof, all in accordance with the terms and provisions hereinafter set forth, PAYMENT PRACTICES, INCORPORATED, (hereinfafter "PPI") and MEMBER agree as follows:
1 - The web site used by PPI for collecting, retaining and communicating, to paid subscribers only, the said (financial) ratings of the said translation agencies, was developed exclusively by PPI and was compiled by PPI from various data sources (i.e., the web site consists solely of member/subscriber input in the form of inquiries and responses, which responses are rated and assigned to an inquiry).
2 - The web site will be made available and accessible to MEMBER (only, in addition to PPI and other paid subscribers) to utilize such web site.
3 - The consideration for access by MEMBER to such web site is the payment of a "sign-up fee" of $19.99 U.S. (or an equivalent sum in euros as indicated on the web site), and a subsequent "annual fee" of $19.99 (and as indicated above) by MEMBER to PPI, in cash or cash equivalent (including checks or money orders, but not credit cards), within (10) days after the execution of this Agreement by both parties, as to the "sign-up fee," and as to the "annual fee," before access for the year (thereafter) is provided to the said web site by PPI to MEMBER.
4 - These fees will not be refunded for any reason, same constituting access fees to the said web site.
6 - There is no risk of loss at issue in this transaction, and title to the (intellectual) property (i.e., the information, data, memory, software and hardware constituting the web site) will remain, at all times, the exclusive property of PPI, regardless of any payments by MEMBER (as described above); PPI retains all rights, title and interest in and to the said intellectual property and the web site.
7 - MEMBER also covenants (1) not to misuse, damage or appropriate any of the said intellectual property of PPI, (2) to recognize and acknowledge PPI’s complete and exclusive rights in and to the said intellectual property (of PPI), and (3) not to violate any law or commit any tort or crime whatsoever in using the web site or accessing or distributing any information derived from the web site.
8 - Access to the web site will not occur until all "sign-up fees" or "annual [for that year] fees" are paid in full.
9 - All of the terms of this Agreement shall survive the execution of this Agreement and the expiration of (any annual term [based on the date of execution] of) this Agreement.
10 - PPI EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THIS AGREEMENT OR THE DELIVERY OR DISTRIBUTION OF ANY INFORMATION ON OR DERIVED FROM THE WEB SITE, INCLUDING BUT NOT LIMITED TO ITS FITNESS, QUALITY, QUANTITY, ACCURACY, CONDITION OR CHARACTERISTICS, OR ITS SUITABILITY FOR SUCH PURPOSES OR USES AS SET FORTH ABOVE OR AS OTHERWISE CONTEMPLATED, ALL OF WHICH IS A MATTER OF MEMBER’s JUDGMENT, SAID INFORMATION BEING PROVIDED, DELIVERED AND SOLD "AS IS, WHERE IS," AT THE "POINT OF ACCESS," except as is set forth in this Agreement.
11 - PPI IS NOT RESPONSIBLE FOR THE CONTENT OF ANY INFORMATION SET FORTH ON OR DERIVED FROM THE WEB SITE, OR THE USE OF SAME BY PPI, ANY OF PPI’s MEMBERS (SUBSCRIBERS), OR ANY OTHER PERSON, FIRM OR ENTITY WHATSOEVER.
12 - THE PARTIES TO THIS AGREEMENT SPECIFICALLY ACKNOWLEDGE THAT NO WARRANTY OR REPRESENTATION OF ANY KIND WHATSOEVER IS BEING MADE BY EITHER PARTY IN CONNECTION WITH THE EXECUTION OR PERFORMANCE OF THIS AGREEMENT, except to the extent set forth in this Agreement.
13 - MEMBER SHALL INDEMNIFY, PROTECT AND HOLD HARMLESS PPI, AND ITS RESPECTIVE DIRECTORS, OFFICERS, AGENTS, EMPLOYEES, REPRESENTATIVES, ATTORNEYS, SUCCESSORS AND ASSIGNS, FROM ALL LIABILITIES, CLAIMS, DEMANDS, ACTIONS, LOSSES, DAMAGES AND COSTS, INCLUDING ALL COSTS OF DEFENSE THEREOF, OF ANY NATURE WHATSOEVER, FOR INJURY (INCLUDING DEFAMATION, INVASION OF PRIVACY OR ANY OTHER "COMMUNICATION TORT") TO OR DEATH OF PERSONS OR LOSS OR DAMAGE TO PROPERTY, INCLUDING ANY ECONOMIC LOSS, OR FOR ANY OTHER REASON, IN ANY MANNER ARISING FROM OR CONNECTED WITH THE DELIVERY OR DISTRIBUTION OF OR ACCESS TO INFORMATION (AS DESCRIBED ABOVE) UNDER THIS AGREEMENT, THE MAINTENANCE (OR FAILURE TO MAINTAIN) OR THE OPERATION OF THE SAID WEB SITE OF PPI, OR PPI's FAILURE TO SUPPLY INFORMATION OR THE QUALITY OF ANY INFORMATION DELIVERED OR DISTRIBUTED, AND INCLUDING CLAIMS AND ACTIONS BASED UPON THE ACTS OR OMISSIONS OF MEMBER OR ITS OFFICERS, AGENTS, EMPLOYEES AND/OR CONTRACTORS.
14 - Upon demand, MEMBER shall, at its own expense, defend PPI (as set forth above) against any and all such liabilities, claims, demands, actions, losses, damages and costs arising from Item 13 above. Moreover, MEMBER shall give PPI prompt notice of any claim within its knowledge that in any way (directly or indirectly) affects either PPI or MEMBER. Both parties shall have the right to participate in the defense of such claim to the extent of their interests.
15 - MEMBER HEREBY AGREES TO RELEASE, INDEMNIFY AND HOLD HARMLESS PPI FOR ANY AND ALL CLAIMS ARISING FROM THE ENTRY INTO, THE EXECUTION OF, THE ENFORCEMENT OF, OR THE INTERPRETATION OF THIS AGREEMENT.
16 - The term of this Agreement shall be one (1) year, commencing on the date of execution of this Agreement by both parties (and PPI will only execute this Agreement when the required payment in full has been received) and terminating exactly one year thereafter. This Agreement can be renewed but only upon the prior payment of the said (pertinent) "annual fee," under the same provisions and conditions, for an additional year.
17 - This Agreement may be terminated for cause (including any action constituting a breach of the terms of this Agreement) by either party, as appropriate, or by mutual agreement of the parties, or in the event of any occurrence (e.g., bankruptcy, dissolution or governmental action, as appropriate) precluding MEMBER or PPI from performing the obligations contemplated under this Agreement.
18 - This Agreement shall not be assigned in whole or in part by either party without the consent and approval of the other party, set forth in writing and signed by both parties. Any assignee will be bound by the terms of this Agreement.
19 - Any waiver by either party of any default under or breach of this Agreement shall not constitute a continuing waiver of such default or breach, or a waiver of or permission for (express or implied) any other or subsequent default or breach.
20 - This Agreement shall be binding upon and inure to the benefit of the parties to this Agreement and their respective heirs, legal representatives, successors and assigns, as appropriate. There are no third-party beneficiaries to this Agreement.
21 - It is the specific intention of the parties to this Agreement that this Agreement constitutes a final and executed instrument binding upon all of the parties to the said instrument.
22 - The parties hereto shall not be construed to have the relationship of partners, joint venturers, principal-agent or employer-employee. The parties are separate entities who enter into this Agreement for their respective benefit.
23 - In the event that either party shall be prevented from completing performance of its respective obligations hereunder by an "act of God" or any other occurrence whatsoever which is beyond the control of the parties hereto, then such party shall be excused from any further performance of its obligations and undertakings hereunder, provided however, that in the event that any such performance is only interrupted or delayed, the affected party shall only be excused from such performance for such period of time as is reasonably necessary after such occurrence to remedy the effects thereof.
24 - This instrument contains the entire agreement between the parties relating to the rights granted herein and the obligations assumed herein, and supersedes any prior understandings, representations, memorandums or agreements regarding the provision of access to and the delivery and distribution of information from the said web site that is the subject of this Agreement. Any oral representations or modifications concerning this instrument shall be of no force or effect.
25 - THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS (AND WHERE APPLICABLE, THE LAWS OF THE UNITED STATES OF AMERICA), AND, THE OBLIGATIONS AND UNDERTAKINGS OF EACH OF THE PARTIES TO THIS AGREEMENT SHALL BE PERFORMABLE IN CAMERON COUNTY, TEXAS.
26 - ANY DISPUTE, CONTROVERSY OR CLAIM ARISING UNDER OR RELATING TO THIS AGREEMENT, OR THE BREACH, TERMINATION OR INVALIDITY THEREOF, SHALL BE SETTLED BY ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION ACT, AND THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION (THIS DOES NOT REQUIRE THE USE OF SUCH ASSOCIATION, AND SUCH RULES ARE ONLY PROCEDURES FOR THE ARBITRATION), USING ONE ARBITRATOR -- SUCH ARBITRATION TO BE CONDUCTED IN BROWNSVILLE, CAMERON COUNTY, TEXAS, IN THE ENGLISH LANGUAGE -- AND A JUDGMENT UPON THE AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF.
27 - If any proceeding is initiated to resolve a dispute arising under or relating to this Agreement by any of the parties, it is expressly agreed that the prevailing party shall be entitled to recover from the other party reasonable attorney fees and expenses, in addition to any other relief that may be awarded.
28 - Each of the parties hereto have been represented by or had the opportunity to be represented by counsel of their choice in the negotiation and drafting of this Agreement. Accordingly, this Agreement shall not be construed in favor of either party.
29 - Any notice to either party shall be in writing and sent by certified or registered mail, addressed to that party as set forth above, at its respective address set forth above or such other address as may be designated, taking into account that any such notice shall be deemed to have been given as of the date that the notice is deposited in the United States Mail.
30 - The parties to this Agreement specifically warrant and represent that the parties to this Agreement are authorized to to execute this Agreement by the said parties in accordance with the requisite corporate formalities of each such party, the execution of this Agreement by said partiees, by submission of the subscription form and/or payment of the access fee and subsequent granting of access to the web site, constitutes the binding act of (each) such party to this Agreement and the execution of this Agreement and the adoption of same by each party is authorized by law.
31 - The parties agree that the consideration for the execution of this Agreement has been received by each (other) party, as appropriate.
32 - As used in this Agreement, wherever the context so indicates, the masculine, feminine or neuter gender, the singular or plural number, and the individual or corporate capacity, shall each be deemed to include the others.