Shared
Web Hosting Account Holder Service Agreement
This is an agreement between you ("Account Holder")
and EMS Internet Designs for itself and on behalf of its
affiliates regarding your use of EMS Internet Designs
computer, interactive information, communication and server
management services related to hosting one or more websites
("Services").
OVERVIEW
1.1 General. This Agreement governs the terms and conditions
under which EMS Internet Designs makes the Services offered by
EMS Internet Designs available. Under this Agreement, you must
comply with EMS Internet Designs's "Acceptable Use
Policy," as updated from time to time by EMS Internet
Designs, which can be viewed at www.mammothdata.com. PLEASE
READ THESE TERMS AND CONDITIONS CAREFULLY. BY SUBMITTING
SUBSCRIBER INFORMATION, REGISTERING, AND ACTIVATING THE WEB
HOSTING ACCOUNT, YOU ARE AGREEING TO BE BOUND BY AND ARE
BECOMING A PARTY TO, THIS AGREEMENT. IF YOU DO NOT ACCEPT AND
AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO
NOT SUBMIT THE SUBSCRIBER INFORMATION OR ACTIVATE THE WEB
HOSTING ACCOUNT.
TERM
2.1 Term Commencement. This agreement ("Agreement")
becomes effective when Account Holder inputs subscriber
information, registers and activates their account.
2.2 Initial Term. EMS Internet Designs will host an account
for Account Holder, for the Account Holder's registered domain
name, for the period of time corresponding with the payment
plan chosen by the Account Holder in the registration process
(the "Initial Term").
2.3 Renewal term(s). If Account Holder wishes to terminate the
Services at the end of the Initial Term or any subsequent
Renewal Terms, notice of intent to terminate must be given in
written form faxed to 404-581-9911 or emailed from email
contact account to support@MammothData.com at least 30 days
prior to the termination date. Neither U.S. mail nor phone
notification shall be acceptable. If Account Holder fails to
notify EMS Internet Designs of its intent not to renew, this
Agreement will be automatically renewed on a month-to-month
basis at EMS Internet Designs's then-current rates and charges
for month-to-month Service. If Account Holder wishes to renew
for a Term equal to their Initial Term (.Renewal Term.), they
must notify EMS Internet Designs at least 30 days prior to the
renewal date of their desire to renew for the Renewal Term. If
Account Holder renews for the Renewal Term, this Agreement
will be renewed for the Renewal Term at EMS Internet Designs's
then-current rates and charges.
FEES AND PAYMENT TERMS
3.1 Fees and Expenses. Unless modified in accordance with
Section 3.3. Account Holder will pay all fees due according to
the prices and terms selected during the registration process,
including overage fees, which are those fees that may be
charged if an Account Holder utilizes resources in excess of
the Account Holder's plan limit ("Overage Fees
3.2. Payment Terms. EMS Internet Designs reserves the right to
require a security deposit prior to provisioning Service. All
installation or set-up fees and non-recurring charges, along
with the first term's (prepaid, one month or one year) service
fees, shall be due and payable: 1.) if Account Holder is being
billed with their telephone bill, on the due date of such
bill; and 2.) if other payment arrangements have been made,
within 14 days of invoice date. Thereafter, recurring fees and
any Overage Fees will be invoiced, in advance, for the same
term as the Initial Term chosen by Account Holder, according
to EMS Internet Designs's billing cycle. Accounts that are
past due, will receive ten (10) days notice to pay. If the
account is still unpaid after that ten (10) day cure period,
service(s) may be suspended or terminated. Reactivation of the
service after termination or cancellation for any reason shall
require the payment of additional installation charges and is
subject to the availability of facilities. All inquiries
regarding payment or your account should be directed in the
United States to 404-614-7385, or to if outside of the U.S.
3.3 Price Changes. During the initial term of this Agreement,
Account Holder will not be charged an amount greater than the
price set for the Services hereunder. EMS Internet Designs,
however, reserves the right, without prior notice, after such
Initial Term, to change the prices charged to the Account
Holder for the services provided by EMS Internet Designs. Upon
renewal, as provided in paragraph 2.3 above, the prices
charged may be changed to the then prevailing price for the
Services.
3.4 Taxes. Account Holder shall pay or otherwise be
responsible for all federal, state, or local sales, use,
excise, gross receipts, municipal fees, transfer, transaction,
property, or similar taxes, fees, or surcharges (hereinafter
"Tax") imposed on, or with respect to, the Services
under this Agreement.
ACCOUNT HOLDER OBLIGATIONS
4.1. Warranties of Account Holder. Account Holder represents
and warrants that; (i) Account Holder is not a minor and is
legally capable of entering into this Agreement, (ii) the
performance of its obligations and use of the Services (by
Account Holder, its customers and users) will not violate any
applicable laws, regulations or cause a breach of any
agreements with any third parties or unreasonably interfere
with other EMS Internet Designs customers' use of EMS Internet
Designs services; (iii) Account Holder is not a resident of
any country or affiliated with any of organization prohibited
to do business within the United States as defined and set
forth at: http://www.treas.gov/ofac and http://www.bxa.doc.gov/DPL/denialist.html
and (iv) that it will strictly comply with the EMS Internet
Designs Acceptable Use Policy, as set forth below in Section
4.2. of this Agreement, and these Terms and Conditions.
4.2 Compliance with Law and EMS Internet Designs Acceptable
Use Policy and Terms and Conditions. Account Holder agrees
that it has received, read and understands the EMS Internet
Designs Acceptable Use Policy. The EMS Internet Designs
Acceptable Use Policy contains restrictions on Account
Holder's and Account Holder's users' online conduct (including
prohibitions against unsolicited commercial email) and may
contain financial penalties for violations of such
restrictions. In the event that Account Holder fails to
comply, Account Holder agrees to pay the financial penalties
in accordance with the EMS Internet Designs Acceptable Use
Policy. The current version of the EMS Internet Designs
Acceptable Use Policy is set forth in Attachment A to this
Agreement for Account Holder's reference. EMS Internet Designs
may change the EMS Internet Designs Acceptable Use Policy upon
notice to Account Holder, which notice may be provided by
posting such new EMS Internet Designs Acceptable Use Policy at
the EMS Internet Designs Web site www.MammothData.com.
4.3 Prohibited Uses. In addition to those matters set forth in
the EMS Internet Designs Acceptable Use Policy, Account Holder
shall not post, transmit, re-transmit or store material on or
through any of Services which, in the sole judgment of EMS
Internet Designs (i) is in violation of any local, state,
federal or non-United States law or regulation, (ii) is
threatening, obscene, indecent, defamatory or that otherwise
could adversely affect any individual, group or entity
(collectively, "Persons") or (iii) violates the
rights of any person, including rights protected by copyright,
trade secret, patent or other intellectual property or similar
laws or regulations including, but not limited to, the
installation or distribution of "pirated" or other
software products that are not appropriately licensed for use
by Account Holder. Account Holder agrees to indemnify and hold
harmless EMS Internet Designs from any claims resulting from
the use of the services which damages Account Holder or any
other party.
4.4. Government Regulations. The Account Holder will not
export, re-export, transfer, or make available, whether
directly or indirectly, any regulated item or information to
anyone outside the U.S. in connection with this Agreement
without first complying with all export control laws and
regulations which may be imposed by the U.S. Government and
any country or organization of nations within whose
jurisdiction the Account Holder operates or does business.
Account Holder shall be responsible for determining what laws
or regulations are applicable to its use of the Services and
Products. Account Holder shall, upon the request of EMS
Internet Designs, provide EMS Internet Designs assurance of
Account Holder's compliance with those laws. Account Holder
acknowledges that EMS Internet Designs exercises no control
whatsoever over the content of the information passing through
Account Holder's site(s) and that it is the sole
responsibility of Account Holder to ensure that the
information it and its users transmit and receive complies
with all applicable laws and regulations and the EMS Internet
Designs Acceptable Use Policy.
4.5. IP Address. If EMS Internet Designs assigns the Account
Holder an Internet Protocol address in connection with the
Account Holder's use of the EMS Internet Designs services, the
right to use that Internet Protocol address will remain with
and belong only to EMS Internet Designs, and the Account
Holder shall have no right to use such Internet Protocol
address except as allowed by EMS Internet Designs in its sole
and absolute discretion.
4.6 Passwords; Account Ownership. The Account Holder shall be
responsible for maintaining security of its password. EMS
Internet Designs will not change passwords to any account
without proof of identification, which is satisfactory to EMS
Internet Designs, which may include written authorization with
signature. In the event of any dissolution of a corporation or
partnership, divorce or other legal action that includes
Account Holder, Account Holder understands that EMS Internet
Designs will remain neutral and may put the account on hold
until final adjudication of the disposition of the domain name
by a court with appropriate jurisdiction. Under no
circumstances will EMS Internet Designs be liable for any
losses incurred by Account Holder during this time of
determination of ownership, or otherwise. The Account Holder
agrees to indemnify and hold harmless EMS Internet Designs
from any and all Claims arising from such ownership disputes.
In the event of a breach of security through the Account
Holder's account, the Account Holder will be liable for any
unauthorized use of the EMS Internet Designs services,
including any damages resulting therefrom, until the Account
Holder notifies EMS Internet Designs's customer service
department of the breach of security.
4.7 Marketing. Account Holder shall not use EMS Internet
Designs's name or any language, pictures or symbols which
could, in EMS Internet Designs's judgment, imply EMS Internet
Designs's identity in any (i) written or oral advertising or
presentation, or (ii) brochure, newsletter, book, or other
written material of whatever nature, without prior written
consent.
4.8 Taxes. Account Holder is responsible for the charging and
collecting from its end user customers any and all applicable
taxes. If the Account Holder fails to impose and/or collect
any tax from end users or its other retail customers as
required herein, then, as between EMS Internet Designs and the
Account Holder, the Account Holder shall remain liable for
such uncollected tax and any interest and penalty assessed
thereon with respect to the uncollected tax by the applicable
taxing authority. With respect to any tax that the Account
Holder has agreed to pay or impose on and/or collect from end
users or its other retail customers, the Account Holder agrees
to indemnify and hold harmless EMS Internet Designs for any
costs incurred as a result of actions taken by the applicable
taxing authority to collect the tax from EMS Internet Designs
due to the failure of the Account Holder to pay or collect and
remit such tax to such authority.
4.9 Audit Rights. EMS Internet Designs reserves the right to
audit Account Holder's site, and the materials comprising the
site, at any time. If the audit reveals any act or omission,
which in EMS Internet Designs's sole opinion, constitutes a
violation of any local, state, federal or foreign law or
regulation, EMS Internet Designs may immediately shut down the
site, and notify Account Holder of the action. Account Holder
agrees that it waives any cause of action or claim it may have
against EMS Internet Designs for such action.
4.10 Investigation. Account Holder understands that EMS
Internet Designs may conduct an investigation into the Account
Holder, Account Holder's business, and/or its owners,
officers, directors, managers and other principals. Based upon
that investigation, EMS Internet Designs reserves the right to
refuse to do business with Account Holder, or to stop doing
business with Account Holder. Account Holder agrees to hold
EMS Internet Designs harmless for any damages arising out of
any form or cause of action, that could arise from EMS
Internet Designs's actions. These audits or investigations
will be conducted solely for the EMS Internet Designs's
benefit, and not for the benefit of Account Holder or any
third party.
4.11. No Third Party Beneficiaries. EMS Internet Designs and
the Account Holder agree that, except as otherwise expressly
provided in this Agreement, there shall be no third party
beneficiaries to this Agreement, including but not limited to
the insurance providers for either party or the customers of
the Account Holder. The Account Holder agrees that it shall
specifically inform its customers that they are not third
party beneficiaries of this Agreement.
4.12 Breach of Warranties. In the event of any breach of any
of the foregoing warranties, in addition to any other remedies
available at law or in equity, EMS Internet Designs will have
the right, in its sole reasonable discretion, to suspend
immediately any related Services if deemed reasonably
necessary by EMS Internet Designs to prevent any harm to EMS
Internet Designs and its business. EMS Internet Designs will
provide notice and opportunity to cure if practicable
depending on the nature of the breach. Once cured, EMS
Internet Designs will restore the Service(s) as soon as
practical.
4.13 Termination for Violation. Violations of these or any
other provisions of this Agreement may result in termination
of the services provided by EMS Internet Designs in its
discretion, with or without the grant of a notice or cure
period, such notice or cure period to be granted at the sole
discretion of EMS Internet Designs based upon the severity of
the violation. EMS Internet Designs reserves the right to
refuse service if any of the content within, or any links
from, the Account Holder's website is deemed prohibited
unlawful, unlicensed, illegal, misleading, or obscene, or is
otherwise in breach of EMS Internet Designs's then current
"Acceptable Use Policy" in EMS Internet Designs's
sole discretion. If EMS Internet Designs terminates the
services being provided to the Account Holder due to a
violation of the Acceptable Use Policy, such termination shall
be without refund, and Account Holder may be liable for early
termination fees. Notwithstanding anything in this Agreement,
the content of the Account Holder's website is the sole
responsibility of the Account Holder. The Account Holder
agrees to indemnify and hold harmless EMS Internet Designs
from any and all claims, losses, damages, liabilities,
judgments, or settlements, including reasonable attorney's
fees, costs, and other expenses incurred by EMS Internet
Designs, (collectively, "Claims") related to or in
connection with the content of the Account Holder's website.
The terms of this Section will survive any termination of this
Agreement. If the Account Holder sells or resells advertising
or webspace to a third party, then the Account Holder shall be
responsible for the contents of such advertising and the
actions of such third party. EMS Internet Designs has the
absolute right to reject any advertising or other third party
content that is illegal, offensive, or otherwise in breach of
the then current EMS Internet Designs "Acceptable Use
Policy". The e-mail distribution by the Account Holder of
"SPAM", "JUNK MAIL", or "UNSOLICITED
COMMERCIAL E-MAIL", is expressly prohibited. If the
Account Holder refuses to remove any advertising or other
third party content deemed objectionable by EMS Internet
Designs, EMS Internet Designs may terminate the services being
provided to the Account Holder, without refund.
EMS Internet Designs REPRESENTATIONS AND WARRANTIES
5.1 Authority and Performance of EMS Internet Designs. EMS
Internet Designs represents and warrants that (i) it has the
legal right to enter into this Agreement and perform its
obligations hereunder, and (ii) the performance of its
obligations and delivery of the Services to Account Holder
will not violate any applicable U.S. laws or regulations, or
cause a breach of any agreements with any third parties. EMS
Internet Designs warrants that it is either the owner or
licensee of any software involved herein and all documentation
related to any such software, and has the right and power to
deliver and license or sublicense the software and all
documentation related to the software.
5.2 No Other Warranty. EXCEPT FOR THE EXPRESS WARRANTIES SET
FORTH IN THIS SECTION 5, THE SERVICES ARE PROVIDED ON AN
"AS IS" BASIS, AND ACCOUNT HOLDER'S USE OF THE
SERVICES IS AT ITS OWN RISK. EMS Internet Designs DOES NOT
MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR
IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A
COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EMS Internet
Designs DOES NOT WARRANT THAT THE SERVICES WILL BE
UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. EMS Internet
Designs DOES NOT WARRANT THAT THE SOFTWARE, INCLUDING SECURITY
SOFTWARE, OPERATES WITHOUT ERROR OR WILL PREVENT THIRD PARTY
HACKING OR ACCESS TO ACCOUNT HOLDER'S NETWORKS. IN THE EVENT
OF A BREACH OF THE WARRANTIES SET FORTH IN THIS SECTION 5,
ACCOUNT HOLDER'S SOLE REMEDY IS TERMINATION PURSUANT TO
SECTION 9 OF THE AGREEMENT.
LIMITATION OF LIABILITY
6.1 Service Interruption. EMS Internet Designs will use its
best efforts to maintain a full time Internet presence for the
Account Holder. The Account Holder hereby acknowledges that
the network may, at various time intervals, be down due, but
not limited to, utility interruption, equipment failure,
natural disaster, acts of God, or human error. In no event
shall EMS Internet Designs be liable to the Account Holder for
any damages resulting from or related to any failure or delay
of EMS Internet Designs in providing access to the Internet
under this Agreement. EMS Internet Designs's liability is
limited to the value of the Account Holder's contract.
6.2 Disclaimer of Actions Caused by and/or Under the Control
of Third Parties. EMS Internet Designs DOES NOT AND CANNOT
CONTROL THE FLOW OF DATA TO OR FROM EMS Internet Designs's
NETWORK AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS
IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED
OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS
OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT ACCOUNT HOLDER'S
CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF). ALTHOUGH
EMS Internet Designs WILL USE COMMERCIALLY REASONABLE EFFORTS
TO TAKE ALL ACTIONS IT DEEMS APPROPRIATE TO REMEDY AND AVOID
SUCH EVENTS, EMS Internet Designs CANNOT GUARANTEE THAT SUCH
EVENTS WILL NOT OCCUR. ACCORDINGLY, EMS Internet Designs
DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO
SUCH EVENTS.
6.3 Disclaimer of Actions Caused by and/or Under the Control
of Account Holder. EMS Internet Designs SHALL NOT BE
RESPONSIBLE FOR ANY FAILURES, REPAIRS OR MODIFICATIONS
NECESSITATED BY THE ACCOUNT HOLDER'S ALTERATION OF THE
OPERATING SYSTEM, INCLUDING ANY AND ALL OPERATIONAL ISSUES
WHICH MAY ARISE AS A RESULT OF THE ADDITION OF SOFTWARE BY
ACCOUNT HOLDER. MAMMOTHDATA SHALL NOT BE LIABLE FOR ANY DELAY
IN PROVIDING OR ANY FAILURE TO PROVIDE SERVICES IF SUCH DELAY
IS CAUSED BY FORCES BEYOND THE REASONABLE CONTROL OF EMS
Internet Designs.
6.4 CONSEQUENTIAL DAMAGES WAIVER. IN NO EVENT SHALL EMS
Internet Designs BE LIABLE TO THE ACCOUNT HOLDER FOR ANY
INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES OR LOST
PROFITS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE
PERFORMANCE OR BREACH THEREOF. THE AGGREGATE, TOTAL LIABILITY
OF EMS Internet Designs UNDER THIS AGREEMENT, IF ANY, SHALL IN
NO EVENT OR CIRCUMSTANCE EXCEED THE TOTAL AMOUNT ACTUALLY PAID
BY THE ACCOUNT HOLDER HEREUNDER. THE TERMS OF THIS SECTION
WILL SURVIVE ANY TERMINATION OF THIS AGREEMENT.
6.5. Basis of the Bargain; Failure of Essential Purpose. The
parties acknowledge that EMS Internet Designs has set its
prices and entered into this Agreement in reliance upon the
limitations of liability and the disclaimers of warranties and
damages set forth herein, and that the same form an essential
basis of the bargain between the parties. The parties agree
that the limitations and exclusions of liability and
disclaimers specified in this Agreement will survive and apply
even if found to have failed of their essential purpose.
INDEMNIFICATION
7.1 Indemnification. The Account Holder agrees to indemnify
and hold EMS Internet Designs harmless from any and all claims
or causes of action of any kind or nature, arising out of or
related to Account Holder's use of products and services
purchased from or provided by EMS Internet Designs, as well as
all claims or causes of action of any kind or nature brought
by any third party, or any of Account Holder's own customers.
The Account Holder and EMS Internet Designs will promptly
notify the other upon receipt of any Claim or legal action
arising out of activities conducted pursuant to this
Agreement. The rights and responsibilities established in this
paragraph will survive any termination of this Agreement.
INTELLECTUAL PROPERTY
8.1 Ownership. Except for the rights expressly granted herein,
this Agreement does not transfer from EMS Internet Designs to
Account Holder any EMS Internet Designs developed technology,
and all rights, title, and interest in and to such technology
will remain solely with EMS Internet Designs. Except for the
rights expressly granted herein, this Agreement does not
transfer from Account Holder to EMS Internet Designs any
Account Holder developed technology, and all rights, title,
and interest in and to such technology will remain solely with
Account Holder. EMS Internet Designs and Account Holder each
agrees that it will not, directly or indirectly, reverse
engineer, decompile, disassemble, or otherwise attempt to
derive source code or other trade secrets from the other
party.
8.2 General Skills and Knowledge. Notwithstanding anything to
the contrary in this Agreement, EMS Internet Designs will not
be prohibited or enjoined at any time by Account Holder from
utilizing any skills or knowledge of a general nature acquired
during the course of providing the Services, including,
without limitation, information publicly known or available or
that could reasonably be acquired in similar work performed
for another customer of EMS Internet Designs.
TERMINATION
9.1. Termination For Cause. Either party may terminate this
Agreement if: (i) the other party breaches any material term
or condition of this Agreement and fails to cure such breach
within thirty (30) days after receipt of written notice of the
same, except in the case of failure to pay fees, which must be
cured within five (5) days after receipt of written notice
from EMS Internet Designs; (ii) the other party becomes the
subject of a voluntary petition in bankruptcy or any voluntary
proceeding relating to insolvency, receivership, liquidation,
or composition for the benefit of creditors; or (iii) the
other party becomes the subject of an involuntary petition in
bankruptcy or any involuntary proceeding relating to
insolvency, receivership, liquidation, or composition for the
benefit of creditors, if such petition or proceeding is not
dismissed within sixty (60) days of filing.
9.2 Liability for Termination. Neither party will be liable to
the other for any termination or expiration of any Service or
this Agreement in accordance with its terms. In the case of
Account Holder's termination or cancellation within the first
thirty (30) days of the Initial Term, EMS Internet Designs
will refund the recurring charges paid by Account Holder, and
Account Holder will only be obligated to pay for the set-up
charges and any overage fees. In the case of Account Holder's
termination or cancellation without cause after the first
thirty (30) days of the Initial Term, Account Holder shall be
immediately liable to EMS Internet Designs for all rates and
charges through the Term.
9.3. Effect of Termination. Upon the effective date of
termination of this Agreement:
(a) EMS Internet Designs will immediately cease providing the
Service(s); and
(b) any and all payment obligations of Account Holder under
this Agreement for Service(s) provided through the date of
termination will immediately become due.
MISCELLANEOUS PROVISIONS
10.1 Force Majeure. Except for the obligation to make
payments, neither party will be liable for any failure or
delay in its performance under this Agreement due to any cause
beyond its reasonable control, including, but not limited to,
acts of war, acts of God, earthquake, flood, embargo, riot,
sabotage, labor shortage or dispute, governmental act or
failure of the Internet (not resulting from the actions or
inaction's of EMS Internet Designs), provided that the delayed
party: (a) gives the other party prompt notice of such cause,
and (b) uses its reasonable commercial efforts to promptly
correct such failure or delay in performance. If EMS Internet
Designs is unable to provide Service(s) for a period of thirty
(30) consecutive days as a result of a continuing force
majeure event, the Account Holder may cancel the Service(s),
but there shall be no liability on the part of EMS Internet
Designs.
10.2. Assignment. The Account Holder may not assign its rights
or delegate its duties under this Agreement either in whole or
in part without the prior written consent of EMS Internet
Designs, and any attempted assignment or delegation without
such consent will be void. EMS Internet Designs may assign
this Agreement in whole or part. EMS Internet Designs also may
delegate the performance of certain Services to third parties,
including EMS Internet Designs's Affiliates. This Agreement
will bind and inure to the benefit of each party's successors
and permitted assigns.
10.3 Notice. Any notice or communication required or permitted
to be given hereunder may be by email to support@mammothdata.com
or confirmed facsimile to 404-581-9911. Such notice will be
deemed to have been given as of the date it is emailed or
faxed.
10.4. Relationship of Parties. This Agreement will not
establish any relationship of partnership, joint venture,
employment, franchise or agency between EMS Internet Designs
and the Account Holder. Neither EMS Internet Designs nor the
Account Holder will have the power to bind the other or incur
obligations on the other's behalf without the other's prior
written consent, except as otherwise expressly provided
herein.
10.5. Governing Law. This Agreement is made under and will be
governed by and construed in accordance with the laws of the
State of Texas (except that body of law controlling conflicts
of law) and specifically excluding from application to this
Agreement that law known as the United Nations Convention on
the International Sale of Goods.
10.6. Severability; Waiver. In the event any provision of this
Agreement is held by a tribunal of competent jurisdiction to
be contrary to the law, the remaining provisions of this
Agreement will remain in full force and effect. The waiver of
any breach or default of this Agreement will not constitute a
waiver of any subsequent breach or default, and will not act
to amend or negate the rights of the waiving party.
10.7 Entire Agreement; Counterparts; Originals. This
Agreement, including all documents incorporated herein by
reference, constitutes the complete and exclusive agreement
between the parties with respect to the subject matter hereof,
and supersedes and replaces any and all prior or
contemporaneous discussions, negotiations, understandings and
agreements, written and oral, regarding such subject matter..
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