Terms and Conditions

WEBSITE HOSTING AGREEMENT

This Agreement Is Between Empowering Media, Inc. And All Customers. This document shall serve as an agreement between Empowering Media, Inc. ("HostASite.com", "we", "us", "host", or "provider") and you as an end-user ("you", "user", "site owner", or "customer"). This document shall constitute the entire agreement between Empowering Media and you and while superseding any other prior agreements, govern your use of all Empowering Media services.

The Host acts as a neutral provider of access to the Internet and, more specifically, the World Wide Web; and WHEREAS, the Site Owner desires for the Host to provide certain services to the Site Owner which will enable the Site Owner’s Internet domain to be accessible via the Internet, pursuant to the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the mutual covenants contained herein, the Host and the Site Owner agree as follows:

1. Definitions. Each of the following terms shall have the respective meaning set forth below for purposes of this Agreement, whether employed in the singular or plural, unless the particular context in which a term is used clearly indicates otherwise:

a. "Hardware" shall mean the computer hardware, including any peripheral or telecommunications device, which the Host utilizes in providing the Hosting Services (as defined below).

b. "Software" shall mean computer programs owned, leased or licensed by the Host which are resident on the Hardware.

c. "Allocated Storage Facility" shall mean the hard drive storage capacity allocated to or used by an Authorized User on the Hardware. Hard drive space usage is calculated on a daily basis.

d. "Resident Data Files" shall mean any magnetic media data files owned by Site Owner located in the Allocated Storage Facility.

e. "Hosting Services" shall mean the services including, but not limited to, use of the Host’s owned, leased or licensed telecommunication facilities, Hardware and Software which the Host shall use for the benefit of or provide to the Site Owner pursuant to this Agreement which shall result in the Site Owner’s Internet world wide web site being accessible by an Internet user. Such services shall include all connectivity, hard disk storage, bandwidth, network connection and/or usage which the Host provides, all in the Host’s sole discretion.

f. "Website" shall mean the Hypertext Markup Language ("HTML") or other code which shall be accessible via the Internet by directing a web browser, file transfer protocol client ("FTP Client") or other networked application to access the Site Owner’s Domain Name (as defined below) which will be located at an Internet Protocol (‘IP") address on Host’s Domain Name Service ("DNS") server.

g. "Authorized User" shall mean the Site Owner, the Site Owner’s employees, and any third party which the Site Owner gives permission to access the Restricted Access Areas on the Website.

h. "Unauthorized User" shall mean any individual or entity accessing or attempting to access the Server who is not an Authorized User.

i. "General Public Areas" shall mean all pages on the Website that can be accessed an Unauthorized User.

j. "Restricted Access Areas" shall mean all pages on the Website accessible only by an Authorized User via a user identification and password combination, restriction via IP/DNS address or any method requiring authentication of an individual's identity.

k. "Domain Name" shall mean the site name selected by Client, provided that such name is available for registration and does not violate any registration services' policies, or any law or regulation, for the Website registered by the Host or an Authorized User with InterNIC on its website located at http://www.internic.net. Please be aware that there are significant smalltext issues with respect to registration and use of a Domain Name; Host highly recommends that the Site Owner see the Site Owner’s smalltext counsel regarding the possibility of filing a trademark or servicemark registration, as the case may be, in order to better protect the Domain Name from attack by any third party.

l. "Fees" shall mean all of the following all of which shall be listed on Schedule B attached hereto and hereby incorporated by reference:

i. "Hosting Fee" shall mean the fee charged to Site Owner by Host for basic Hosting Services which are required by Host to maintain the Website which shall include minimum bandwidth and a minimum Allocated Storage Facility all as specified on Schedule B. The Hosting Fee fixed at the Effective Date and remain constant for the Term of this Agreement. During any Renewal Term, Site Owner shall pay the then-current Hosting Fee.

ii. "Service Fees" shall mean the fees charged to Site Owner by Host for Hosting Services which are in addition to those services purchased by Site Owner with the Hosting Fee; typical Hosting Services which are subject to Service Fees are increased bandwidth, increased Allocated Storage Facility, secondary Internet access accounts, etc. Current monthly Service Fees are listed on Schedule B. During the any month in which the Allocated Storage Facility or bandwidth is in excess of the amount specified in Schedule B, Site Owner will be charged a Service Fee for the incremental use of the Allocated Storage Facility or bandwidth. Service Fees are subject to change without notice.

iii. "Setup Fees" shall mean the cost charged to Site Owner by Host for all initial Hosting Services required to put the Website on the Hardware, make the Website accessible vias the Internet and acquiring the Domain Name for Site Owner. Setup Fees are subject to change without notice. InterNIC charges $100.00 for each two (2) year period to maintain the Domain Name. This charge will be billed directly to the Site Owner by InterNIC.

2. Hosting Services.

The Host hereby agrees to provide the specific Hosting Services as specified on Schedule A attached hereto and hereby incorporated by reference to the Site Owner in exchange for the Site Owner paying the Hosting Fees as described below. The Host shall permit any Authorized User sufficient security clearance including, but not limited to, password access for any such Authorized User to access the Website. Hosting Services hereunder shall include central processing unit ("CPU") usage of not more than thirty (30) seconds for any process begun by any Authorized or Unauthorized User; any CPU usage in excess of such amount may be immediately terminated by Host in its sole discretion. At the time of execution of this Agreement, to the extent that Site Owner wishes to receive from Host, and Host wishes to provide to Site Owner, services other than the Hosting Services such as, by way of example only, services relating to listserves, gopher, FTP, or e-mail, (collectively, the "Additional Services"), such Additional Services and the arrangements for their provision shall be set forth in a separate addendum to this Agreement which is duly executed by the Parties (the "Services Addendum"), and the Services Addendum shall be incorporated into, and become a part of this Agreement. (The Hosting Services and the Additional Services will thereafter be referred to collectively as the "Hosting Services"). Chat rooms, bulletin boards and discussion forums shall not be included in the Website and may not be implemented by or on behalf of Site Owner without prior written approval of Host.

3. Content.

a. Site Owner shall provide to Host all materials comprising the Web Site, including, but not limited to, any images, photographs, illustrations, graphics, audio clips, video clips or text (the "Site Owner Content"), which shall be in a correct format (as specified by Host in consultation with Site Owner), including, but not limited to, HTML format. The Client Content shall be properly adapted and translated by Site Owner for posting to the Hardware so that the Web Site may be accessed via the Internet.

b. Site Owner assumes sole responsibility for acquiring any authorization(s) necessary for hypertext links to third party websites, the accuracy of materials on the Web Site, including, without limitation, Site Owner Content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted, and ensuring that the Site Owner Content does not infringe or violate any right of any third party. Notwithstanding the foregoing, Host reserves the right, in its sole discretion, to exclude or remove from the Web Site any hypertext links to third party websites, any Site Owner Content on the Web Site, or other content not supplied by Host which, in Host’s sole reasonable discretion, may violate or infringe any law or third party rights or which otherwise exposes or potentially exposes Host to civil or criminal liability or public ridicule, provided that such right shall not place an obligation on Host to monitor or exert editorial control over the Web Site.

c. Site Owner shall place and cause to be placed on the Website Site Owner Content that does not contain any content or materials which are obscene, threatening, malicious, which infringe on or violate any applicable law or regulation or any proprietary, contract, moral, privacy or other third party right, or which otherwise exposes Host to civil or criminal liability. Any such materials placed on the Web Site which do not satisfy the foregoing requirements shall be deemed to be a material breach of this Agreement.

4. Representations and Warranties of Site Owner.

The Site Owner represents and warrants that the Site Owner shall not permit any Authorized User to:

a. upload any material to the Website which is the intellectual property of any third party without the prior written consent of such third party. Such intellectual property shall include any patented, trademarked, copyrighted, or trade secret material (whether or not such trade secret material can be patented, trademarked, or copyrighted);

b. perform any ilsmalltext acts through the use of the Website and/or maintain any information including, but not limited to, digital images which may be deemed to be ilsmalltext in any jurisdiction which the Site Owner may be subject to personal jurisdiction by reason of such material being present on the Website;

c. publish or transmit any material in violation of any federal, state, local, or foreign statute, rule or regulation in any jurisdiction which may assert personal jurisdiction over an Authorized User;

d. upload any information to the Website which by reason of such material being on the Website, the Site Owner shall be required to have or maintain any license or permit in a jurisdiction unless the Site Owner shall then have such license or permit in any such jurisdiction;

e. sell any service or product which requires the seller to have or maintain any license or permit in a jurisdiction unless the Site Owner shall then have such license or permit in any such jurisdiction;

f. advertise any service or product for sale in any jurisdiction which jurisdiction requires the Website to be in a language other than English unless the Website is available in such language;

g. upload any content, materials, advertising or provide any services that are inaccurate or that infringe on or violate any applicable law, regulation or right of a third party, including, without limitation, export laws, or any proprietary, contract, moral, or privacy right or any other third party right;

h. contact any Unauthorized User who is a minor for any purpose where the content of any such communication is in any way related to sexuality or any sexual solicitation;

i. circumvent or attempt to circumvent user authentication or security ("cracking") of any Internet or intranet site or other Host account including but not limited to, accessing data not intended for the Authorized User, logging into a server or account the Authorized User is not expressly authorized to access, or probing the security of other networks (such as initiating or maintaining a SATAN scan or other procedure utilizing a similar tool);

j. interfere or attempt to interfere with services for any other site owner, user, host, or network ("denial of service attacks") including, but not limited to, "flooding" of networks, deliberate attempts to overload a service, and attempts to "crash" a host, Authorized Users may not use any kind of program/script/command/application, or send messages of any kind, designed to, in any manner interfere with a user's terminal session;

k. provide any billing or collection services which the Site Owner is not smalltextly authorized in writing to provide;

l. e-mail any unsolicited commercial advertisements to any third party in any situation in which commercial advertisements are unwelcome such as to any Usenet discussion groups (see the particular newsgroup to determine if advertising is permitted). In no event shall the Site Owner permit any Authorized User to "spam" (send any message to many different off-topic newsgroups);

m. maintain any adult (sexually explicit or sexually-related) material at any time in any General Public Areas, or in any Restricted Access Areas unless the Site Owner has obtained Unauthorized User’s acceptance of terms and conditions to which Host has given its prior written approval to Site Owner as being acceptable to Host for this purpose;

n. make any claim that any such Site Owner has any right, title or interest in or to the Hardware or Software; and/or

o. seek any venue not in accordance with the terms and conditions of this Agreement in any action filed pursuant to this Agreement.

p. The Site Owner represents and warrants that the Domain Name does not infringe upon the intellectual property rights, including, but not limited to, any trademark registration, of any third party.

q. Site Owner further represents and warrants that Site Owner has:

i. the power and authority to enter into and perform its obligations under this Agreement;

ii. obtained any authorization(s) necessary for hypertext links from the Website to any third party websites to which the Website contains links to; and

iii. the right to place the Site Owner’s Content on the Website.

r. Site Owner represents and warrants that in the event Site Owner receives notice of any claim regarding the Website, Site Owner shall promptly provide Host with written notice of such claim.

5. Host’s Liability and Warranty.

a. Host shall have no liability whatsoever for any reason relating to any act of an Authorized User or Unauthorized User regardless of the consequences of such act. Host shall have no liability due to the Hosting Services being at any time unavailable and/or unusable by any Authorized User or Unauthorized User whether due to Hardware maintenance or otherwise. Host shall have no liability to the Site Owner for any failed Hosting Services which may include Hardware maintenance, any security procedure or firewall failure including, but not limited to, system re-boot, backup of the Allocated Storage Facility including any Resident Data Files unless such failure resulted from Host’s intentional wrongful act or gross negligence. Host shall have no liability to the Site Owner or any third party for the loss of, or the inability to recover, Website, Resident Data Files or any other files or magnetic media materials stored on the Allocated Storage Facility or anywhere else. Additionally, Host is not responsible for any damage of any kind which Site Owner’s business may suffer regardless of the cause of such damage including, but not limited to, any such damage resulting from delays, non-deliveries, any improper delivery, and any and all service interruptions. Host will not under any circumstances be liable for any damages whatsoever (including, without limitation, damages for loss of business, business interruption, loss of business information or other indirect or consequential loss) arising out of the use or inability to use or supply or non-supply of the Hosting Services.

b. HOST MAKES NO WARRANTIES HEREUNDER, OTHER THAN CERTAIN LIMITED WARRANTIES PROVIDED IN THIS SECTION, AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXPRESSLY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH REGARD TO THE WEBSITE AND THE HOSTING SERVICES. HOST SHALL NOT BE LIABLE TO SITE OWNER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, INTERRUPTION OF BUSINESS, OR ANY DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND WHETHER UNDER THIS AGREEMENT OR OTHERWISE, EVEN IF HOST WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR WAS GROSSLY NEGLIGENT. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN ANY EVENT, THE MAXIMUM TOTAL LIABILITY OF HOST UNDER THIS AGREEMENT LIMITED, IS IN ANY CASE, TO FIFTY PERCENT (50%) OF THE HOSTING FEES AND SERVICE FEES RECEIVED BY HOST IN THE THEN-CURRENT YEAR OF SERVICE. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. IN ANY JURISDICTION IN WHICH THE ABOVE LIMITATIONS OF LIABILITY ARE RESTRICTED, HOST’S LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

c. Hosting Services do not include maintaining a current backup copy of the Website, Resident Data Files or any other files resident on the Allocated Storage Facility. Due to electrical power interruptions, "down time" and/or other factors which may be beyond Host's control, the Website, Resident Data Files, or any other files or magnetic media materials stored on the Allocated Storage Facility may be not recoverable by Host. Site Owner is responsible for backing up Website, Resident Data Files, or any other files or magnetic media materials stored on the Allocated Storage Facility. Notwithstanding that Host is not responsible for backing up Website, Resident Data Files, or any other files or magnetic media materials stored on the Allocated Storage Facility. Host does backup of Host’s magnetic media files located on the Hardware. Should the Site Owner request Host to retrieve the Website, Resident Data Files or any other files or magnetic media materials stored on the Allocated Storage Facility, Host will apply its best efforts in Host’s attempt to restore such information and Host shall charge Site Owner a Service Fee whether or not the Website, Resident Data Files or any other files or magnetic media materials stored on the Allocated Storage Facility are restored; please note any such restoration may not be the most current version of any particular file but Host shall use best efforts to restore the latest version of the files able to be restored. The Service Fee will be an hourly rate quoted in writing by Host in advance of providing such Hosting Service.

6. Site Owner’s Indemnification.

a. The Site Owner agrees to indemnify Host, its officers, directors, employees, agents and contractors from and against any liability to any third party for any and all costs or expenses incurred relating to any action by any such third party, including, but not limited to, attorneys’ fee and disbursements, arising from the Hosting Services including but not limited to any such costs or expenses relating to any product or service sold by the Site Owner, Site Owner’s employees, agents, contractors or assigns.

b. In addition, the Site Owner agrees to indemnify Host, its officers, directors, employees, agents and contractors, from and against any liability to any third party and any and all costs or expenses incurred relating to any action by any such third party, including, but not limited to, attorneys’ fee and disbursements, arising from any claim of direct or contributory intellectual property infringement, including, but not limited to, any claim that the Domain Name infringes on any third party’s trademark or servicemark filing in any jurisdiction, trade secret infringement or disclosure, or tort liability including, but not limited to, liable, any of which arise, directly or indirectly, from providing the Hosting Services.

7. Host's Representations and Warranties. Unless otherwise agreed in a separate written smalltext agreement:

a. the Domain Name is the property of the Site Owner and Host shall not claim otherwise;

b. the Content is the property of the Site Owner and Host shall not claim otherwise;

c. Site Owner shall have the sole responsibility for the Content as well as its maintenance; and

d. all Resident Data Files created or maintained through connectivity with the Website is the property of the Site Owner who shall have the sole responsibility for such material as well as its maintenance and Host shall not claim otherwise.

e. Host represents and warrants that Host has the power and authority to enter into and perform its obligations under this Agreement, and that the Hosting Services shall be performed in a workmanlike manner.

f. Virus protection offered on the Host is offered on an "as is, as available" basis. We specifically disclaim any other warranty, express or implied, including any warranty of fitness for a particular purpose. In no event shall we be liable for any loss or damage. If our service is disrupted or malfunctions for any reason, we shall not be responsible for losses of income due to disruption of service.

8. Accounts.

a. The Site Owner is responsible for all use of Authorized Users account(s) and confidentially of password(s). Host will suspend access or change password access to Authorized User's account(s) immediately upon notification by Authorized User that such individual’s password has been lost stolen or otherwise compromised. Notwithstanding such action of Host’s part, Site Owner is responsible for any and all usage and or charges which accrue on Site Owner’s account.

b. Host shall fully cooperate with third party investigations of security violations and with all law enforcement authorities.

9. Payment for Services; Money-back Guarantee.

a. All Hosting Services are provided subsequent to prepayment for such services unless otherwise agreed to. The Site Owner shall pay a one-time set-up fee for each new account which set-up fee is not subject to the money-back guarantee but is refundable in limited circumstances as provided below. In addition, if additional Hosting Services are requested, there may be a set-up fee to be paid relating to such additional services; any such additional service set-up fee is also non-refundable and is again not subject to the money-back guarantee.

b. In the event the Site Owner is not satisfied with the Host or the Hosting Services within thirty (20) days from the Effective Date of this Agreement, the Site Owner shall receive a full refund of any and all Hosting Fees and Service Fees received by Host; any Setup Fee received by Host is non-refundable unless this Agreement is terminated in accordance with its terms prior to the activation of the Site Owner’s account; or (2) the requested Domain Name was not available and the Site Owner does not request another choice for a Domain Name.

c. If the Term of this Website Hosting Agreement is in excess of three (3) months and Host receives notice of termination (as provided below) prior to the date which marks one-half (1/2) of the Term, a refund of one-half (1/2) of the Hosting Fee received by Host plus one-half (1/2) of any then unearned Service Fee shall be paid to the Site Owner. No refunds shall be considered unless Host has received notice of termination prior to the beginning of the second half of the Term.

d. Payment of Fees for Hosting Services is due each Term or Renewal Term for the whole length of this Agreement, as the case may be. Credit card orders that are on a monthly, quarterly, semi-annual and annual basis will be charged to the card number on file unless this Agreement terminates. If for any reason the credit card authorization is not received within three (3) attempts, this Agreement and the Hosting Services are subject to suspension. In the event Site Owner does not make other payment within a week of receiving notice, this Agreement shall be terminated as if the Term expired without renewal. The Site Owner is responsible for all Fees from the Effective Date to the effective date of Site Owner’s notice of termination of Hosting Services. Checks returned unpaid (NSF) will be assessed a $15.00 service charge. All cash payments of Fees shall be in U.S. currency and payments of Fees by check shall be in U.S. currency and drawn from against a bank physically located in the United States. In the event payment is made by check, the Effective Date shall be the date upon which such check clears Host's bank. After a check has cleared Host’s bank, Host shall notify Site Owner of the Effective Date and account activation.

e. In the event for any reason, the Site Owner is past due in paying Host for the Hosting Services, Host may, in its sole discretion, suspend Hosting Services (effective immediately upon giving notice of such suspension) until such payment is made or terminate this Agreement immediately upon giving notice of such termination. In the event that Host determines to so suspend or terminate Hosting pursuant to this Section, Host shall give notice of such determination to the Site Owner in accordance with Section _____ below. In the event payment any such payment is past due, interest shall accrue at the rate of one and one-half percent (1 1/2%) per month on the then-outstanding balance of the Site Owner’s account.

f. Hosting Services not included by reason of Site Owner paying the Hosting Fee shall be assessed then-current Service Fees. Hosting Services added during Term will not be discounted and Setup Fees for the additional Hosting Service shall be applied pursuant to the then-current fee schedule of Host. Hosting Services which are discontinued during the Term shall be credited to the Site Owner on a pro rata basis to the time of discontinuance.

g. If the Site Owner pays the Fees by credit card, the monthly Fees shall be billed to the Site Owner’s credit card account for the total Fees due which shall be made up of the Hosting Fee for the remainder of the month and any Service Fees incurred in the prior month. Other payment methods will require payment in advance for Hosting Fees and end of the month billing for any Service Fees. In any event, Setup Fees are to be paid in advance.

10. Termination and Termination Events

1. This Agreement shall become effective on the Effective Date and shall terminate [monthly, three months, six months, twelve months] thereafter (the "Term"). Host shall give Site Owner thirty (20) days renewal notice prior to the expiration of the Term. Unless Site Owner contacts Host within such thirty (20) day period to terminate this Agreement, at the expiration of the Term or any Renewal Term, Site Owner shall be considered to renew this Agreement for an additional [monthly, three months, six months, twelve months] (the "Renewal Term").
2. The parties hereto expressly acknowledge and agree that the exercise by either of its rights of termination as provided in this Section or elsewhere in this Agreement shall not be deemed or construed as wrongful, unconscionable or abusive. The parties agree and recognize that the termination and termination notice provisions contained in this Agreement are reasonable, and not unconscionable, and that the exercise of termination rights in accordance with the terms of said termination provisions shall not be deemed a violation of any good faith or any other obligation. The foregoing shall be without prejudice to the right of a party to claim any amounts due and owing from the other by virtue of specific provisions of this Agreement or by virtue of a default under, or breach of, the provisions of this Agreement.
3. In the event Host discovers or in any manner receives any notice from any party that any Authorized User or Unauthorized User has or is utilizing the Website for any illicit or impermissible purpose or activity including, but not limited to, direct or contributory intellectual property infringement, trade secret infringement, or any tort, Host may, in its sole discretion, take any action, without giving any prior notice to the Site Owner, which Host in its sole discretion determines (whether pursuant to the instructions of counsel or otherwise) is necessary to discontinue any such infringement or tort including, but not limited to, terminating the Hosting Services or this Agreement. Host shall give reasonably timely notice to Site Owner of actions taken by the Host. If this Agreement is terminated pursuant to this Subsection, all Fees received through the date of termination shall be deemed earned and the Site Owner shall not receive any Fee refund.
4. This Agreement may be terminated at any time by Host due to any breach of this Agreement by Site Owner. Such termination shall be effective upon Host giving notice of such termination to the Site Owner in accordance with the terms and conditions of this Agreement. Notwithstanding the requirement that Host is required to give notice under this Section to terminate this Agreement, Host may, in its sole discretion, subsequent to any such breach but prior to the termination of this Agreement, terminate any Internet connectivity for the Website. If this Agreement is terminated pursuant to this Subsection, all Fees received through the date of termination shall be deemed earned and the Site Owner shall not receive any Fee refund.
5. Site Owner may terminate this Agreement without cause or without the necessity of specifying cause by giving 15 days prior written notice (fax, Email or postal mail) of termination to Host. In the event Site Owner terminates this Agreement pursuant to this Subsection, any refund of Hosting Fees and Service Fees which may be payable to the Site Owner shall be payable on a pro-rata basis.

11. Other Provisions

1. Force Majeure. Any failure by Host to perform any obligation arising under or in connection with this Agreement shall be excused, if such failure shall have been caused by any act or circumstance beyond the reasonable control of Host, including, but without limiting the generality of the foregoing, any Act of God, fire, flood, explosion, lightning, windstorm, earthquake, failure of machinery or equipment, shortage of materials, discontinuation of power supply, court order or governmental interference, civil commotion, riot, war, strike, labor disturbances, transportation difficulties or labor shortages.
2. Entire Agreement. This Agreement constitutes the entire understanding between the parties regarding to specific subject matter covered herein. This Agreement supersedes any and all prior written or verbal contracts or understandings between the parties hereto and neither party shall be bound by any statements or representations made by either party not embodied in this Agreement. No provisions herein contained shall be waived, modified or altered, except by an instrument in writing, duly executed by the parties hereto.
3. Governing Law; Venue. This Agreement shall be subject to and governed in all respects by the laws of the State of New York, U.S.A., without giving effect to the conflict of laws principles thereof. Additionally, the parties agree that the proper venue for any action which may arise between the parties is the County of New York in the State of New York. In the event that any federal claim is involved, proper venue will be in the Federal District Court of the Southern District of New York and in the event of any state claim, the proper venue is the Supreme Court of New York, First Department.
4. No Implied Waivers. No delay or omission by either party to exercise its rights and remedies in connection with the breach or default of the other shall operate as or be construed as a waiver of such rights or remedies as to any subsequent breach.
5. Assignment. Neither party will have the right to assign, pledge or transfer all or any part of this Agreement without the prior written consent of the other, and any such purported assignment, pledge or transfer by a party without such prior written consent shall be voidab initio. In the event Host is merged into another entity and is not the survivor of such merger, the surviving entity shall be bound to this Agreement in place of Host.