"ABN Newswire" means a service arm of ABN IR Pty Ltd, an Australian registered company. "Client" means the party utilizing ABN Newswire's services. "Agreement" means this Terms of Service Agreement between the Client and ABN Newswire. "Content" and "Client Content" mean all information and materials submitted by Client to ABN Newswire. "Service" or "Services" means the services provided to Client by ABN Newswire including, but not limited to, press release distribution, Internet clips, webcasting, and regulatory filing. "Partner" or "Partners" means a third party that has a joint venture or marketing relationship with ABN Newswire.
2. CLIENT REPRESENTATIONS AND WARRANTIES
The Client is solely responsible for the accuracy and authenticity of the Content submitted by Client to ABN Newswire. Client represents and warrants to ABN Newswire, as follows:
- a. That Client has the right and is authorized to submit the Content to ABN Newswire for distribution, broadcasting and/or filing; and
- b. That the Content is true and accurate; and
- c. That the Client is not impersonating any person or entity or misrepresenting Client's affiliation with any person or entity; and
- d. That the distribution, broadcasting and/or filing of the Content does not violate the state, federal or common law copyright, trademark, or service mark rights, any other property rights, privacy rights, intellectual property rights, confidentiality rights or other proprietary or contract rights of any third party; and
- e. That the Content does not contain any information which is libelous or otherwise illegal; and
- f. That the Client will not misuse the Services or misappropriate the Content to compete directly or indirectly with ABN Newswire or to engage in derivative commercial activities without ABN Newswire's prior written consent; and
- g. That the Client has investigated the desirability of utilizing ABN Newswire's services and is not relying on any representation, guarantee, or statement other than as set forth in these Terms of Service or in the materials on ABN Newswire's web site, "abnnewswire.net"; and
- h. That the Client is not using ABN Newswire's publishing and distribution capability by submitting content, that at the time of submission of that content for publishing and distribution, has already been published and distributed by a commercial newswire service or agency.
In the event any third party brings any action, arbitration, or other legal proceeding (collectively, "legal proceeding") against ABN Newswire, its officers, directors, shareholders, agents, employees or other representatives of ABN Newswire, or against any third party who broadcasts, displays or distributes the Content with the permission of ABN Newswire, or against any third party who provides advertising for ABN Newswire, or against any other third party who otherwise uses the Content with ABN Newswire's permission (collectively hereinafter referred to as "the Indemnitees"), or against any Partner, arising from the distribution, broadcast, filing or display of any Content provided by Client to ABN Newswire or, from any breach by Client of this Agreement, or, based upon the inaccuracy of any warranty or representation made by Client herein, or, based upon the contention that the Content defames or slanders any third party or, based upon the contention that the Content violates any provision of state or federal law or the intellectual property rights of any third party, Client shall indemnify, defend, and hold the Indemnitees harmless in connection with the claims made in the legal proceeding. Included in Client's obligation to indemnify, defend, and hold the Indemnitees harmless is the obligation to pay all legal fees, expert witness fees, costs, and expenses incurred or to be incurred by the Indemnitees in connection with the defense of the legal proceeding (even if the legal proceeding is without merit).
Client hereby grants ABN Newswire a non-exclusive, royalty-free, sub-licensable, transferable, and assignable license to store, display, reproduce, distribute and, if appropriate, translate the Content submitted. Client also grants ABN Newswire the right to mention Client's name in ABN Newswire's marketing collateral, unless Client requests in writing that ABN Newswire refrain from such mentions.
Prices for ABN Newswire's Services may change from time to time. The price actually charged for a specific Service will be the price in effect at the time the Service is requested, minus any applicable discounts that may have been accorded Client under a valid Sales Contract signed by both Client and ABN Newswire.
6. PAYMENT AND CREDIT TERMS
Clients may pay for Services by credit card at the time the Content is submitted or, with approved credit, may be invoiced. Unless otherwise specified, invoices are due upon receipt.
If Client fails to pay any sums when due, Client acknowledges and agrees that ABN Newswire may demand payment of the balance owed in full, with accrued interest at the monthly rate of 1.5% of the outstanding balance. ABN Newswire may, at its sole election, suspend performance of any further Services and/or may switch Client from invoice to credit card payment status, until such time as all payments due are paid.In the event Client fails to make payment for any Services when due or the event ABN Newswire takes any action to enforce its rights, Client agrees to pay all costs of collection, including reasonable attorneys' fees, which are incurred by ABN Newswire or its agents, whether or not a legal proceeding has begun. In the event of litigation to enforce the terms herein, the prevailing party will be entitled to recover from the other party its costs and fees, including reasonable legal fees.
8. NO WARRANTIES BY ABN NEWSWIRE
Except as stated in these terms, ABN Newswire or Partner makes no warranty, express or implied, and no promise or representation has been made by ABN Newswire or Partner regarding any services to be provided by or through ABN Newswire or partner.
9. LIMITATION OF LIABILITY
ABN Newswire's and Partner's liability shall be strictly limited to the amount paid by or on behalf of the Client to ABN Newswire in connection with the services out of which the claim by Client arises.
ABN Newswire shall not be liable for indirect, incidental, consequential, special or exemplary damages arising from performance under, or failure of performance under, any provision of this Agreement, such as, but not limited to, loss of revenue, change in share price, loss of anticipated profits or lost business.
This limitation of liability applies to any damages, including without limitation those caused by any failure or performance, error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, alteration of, or use of records, whether for breach of contract, tortuous conduct, acts or omissions, negligence, or under any other claim or cause of action.
10. ENTIRE AGREEMENT
This Agreement, together with the Sales Contract (if any) referenced in section 5 above ("Prices") constitute the entire agreement between Client and ABN Newswire regarding the Services provided and/or to be provided by ABN Newswire. This Agreement replaces any and all prior written and oral understandings and writings. Unless otherwise explicitly stated, the provisions of this Agreement shall survive its termination.
Any legal action initiated by either party to enforce or construe any right granted under this Agreement or to assert any claim arising from the Services provided by ABN Newswire to Client shall be filed exclusively in Australia. In connection with any such action, Client consents to jurisdiction in the Courts of the Commonwealth of Australia. In any such action, the parties agree that the laws of the Commonwealth of Australia shall apply and shall govern the determination of the action.
12. EFFECT OF DELIVERY OF NOTICES BY FACSIMILE OR ELECTRONIC MAIL
The parties agree that the parties shall treat any document sent to the other by facsimile or by electronic mail as if the document were an original delivered to the recipient by hand delivery.