Additional Terms
Additional Terms and Conditions
12. Indemnification; Limitation of Liability.
12.1 Indemnification. You will indemnify, defend and hold us and our Affiliates (and the respective employees, directors and representatives of each) and any operator of bside.com harmless from and against any and all claims, judgments, damages and expenses (including reasonable attorneys’ fees) (“Claims”) to the extent that such Claim arises out of any breach or alleged breach by you of this Agreement. If you have any reason to think that an infringement claim may occur with respect to any Content or Title, you will immediately notify us in writing.
12.2 General Limitations. B-SIDE (INCLUDING ITS AFFILIATES) WILL NOT BE LIABLE TO YOU FOR ANY LOST PROFITS OR ANY OTHER CONSEQUENTIAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES WHATSOEVER, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF B-SIDE HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. B-SIDE’S (INCLUDING ITS AFFILIATES’) AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, WILL NOT EXCEED THE LESSER OF (i) $1,000, OR (ii) THE AMOUNT WE RECEIVED FROM CUSTOMERS FOR SALES OF YOUR UNITS (NET OF ALL LICENSE FEES) AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
13. Termination. Upon termination, we will each pay to the other any fees that were incurred prior to the date of the termination. Also upon termination: (i) we may fulfill any pending customer orders; and (ii) we may continue to maintain digital copies of your Content and Titles in order to provide “refresh” copies or otherwise support customers who have received a Title prior to termination. Sections 11, 12, 13, and 14 shall survive the termination of this Agreement.
14. Miscellaneous.
14.1 Relationship of the Parties; Publicity. Nothing contained in this Agreement will create a partnership, joint venture, or agency relationship between the parties. The parties will act as independent contractors hereunder, and neither will have the authority to bind the other with respect to any third party. You may not issue press releases, publicity, or references relating to us, Affiliates, bside.com, or this Agreement (or any trade name, trademark, service mark, logo, commercial symbol, or any other proprietary right) in any materials. We may issue press releases regarding you and the Content or Titles in our discretion and you further agree that we may include your name, trade name and logo on publicly displayed customer lists.
14.2 Assignment; No Assurances. You may not assign any of your rights or obligations under this Agreement without our prior written consent. Any attempted assignment will be void. You acknowledge and agree that we are not making any assurance, and you have no assurance, that we will sell any number of Titles under this Agreement. We make no promise or representation that we will exercise any right granted herein for any Content or Title or any portion thereof.
14.3 Notices. Any notice hereunder will be in writing. Notice is effective: (i) when delivered personally; (ii) three business days after sending by certified mail; (iii) on the business day after sending by a nationally recognized courier service; (iv) on the business day after sending by facsimile with electronic confirmation to the sender; or (e) if to you via the email address provided by you. Either party may change the addresses specified in this Section by giving the other party notice in accordance with this Section.
14.4 Governing Law; Jurisdiction. This Agreement will be governed by the laws of the State of Texas, without reference to its conflicts of law provisions. You irrevocably submit to venue and exclusive personal jurisdiction in the federal and state courts in Austin, Texas, for any dispute arising out of this Agreement, and waive all objections to jurisdiction and venue of such courts.
14.5 Waiver; Severability; Rights; Construction. The failure of either party to enforce any provision of this Agreement will not constitute a waiver of the party’s rights to subsequently enforce the provision. If any provision of this Agreement is determined by any court or governmental authority to be unenforceable, the parties intend that this Agreement be enforced as if the unenforceable provisions were not present and that any partially valid and enforceable provisions be enforced to the extent that they are enforceable. In resolving any dispute or construing any term hereof, there will be no presumptions made or inferences drawn: (i) because one of the parties drafted the Agreement; or (ii) because of the drafting history of the Agreement.
14.6 Force Majeure. We will not be liable or otherwise responsible to you or any third party for any delay, default, or failure of performance arising out of any reasonably unforeseeable act, matter, cause, contingency or circumstance beyond our control, including, without limitation, any acts of God, third party acts or governmental action.
14.7 Passwords. Your password for bside.com may be used only to access bside.com, use the Services, electronically set up your Titles, and review any reports or other features we make available to you. You are solely responsible for maintaining the security of your password. You may not disclose your password to any third party and are solely responsible for any use of or action taken under your password on the bside.com.
14.8 Privacy. Please read our privacy notice (the “Privacy Notice”), which is incorporated herein by reference. The Privacy Notice may be changed by us in the future. Unless otherwise authorized or consented, you agree not to use any information regarding other participants which is accessible from bside.com or disclosed to you by bside.com.
14.9 Entire Agreement. This Agreement, together with all policies, which are incorporated by this reference, constitutes the complete and final agreement of the parties pertaining to the subject matter of this Agreement and supersedes the parties’ prior agreements, understandings, and discussions related to the subject matter of this Agreement. No modification of this Agreement by you will be binding unless it is in writing and signed by us.
