Terms of Hosting Service

The following terms govern all Hosting services provided by BrettAtkin Design.

Payment and Payment Terms

All Hosting Service agreements will be automatically renewed at the end of the Billing Cycle for the same period as the initial cycle unless customer provides BrettAtkin Design with notice of termination or change in desired Billing Cycle (30) days prior to the end of the initial cycle or the renewed cycle.

Customer agree to pay for all charges attributable to customer use of the Hosting at the current BrettAtkin Design prices, which shall be exclusive of any applicable taxes. customer are responsible for the payment of all federal, state, and local sales, use, value added, excise, duty and any other taxes assessed with respect to the Hosting, other than taxes based on BrettAtkin Design's net income.

All charges for Hosting must be paid in advance according to the then current prices applicable to the Hosting service. If customer fails to pay any fees and taxes within seven (7) days from applicable due date, customer account shall be put into a suspension period of an additional seven (7) days. During this time, customer access to the Hosting will be restricted. If during this seven (7) day suspension period, customer provide valid payment information and pay the balance due in-full, service will be reinstated upon the processing of the new payment information. In addition, customer failure to fully pay any fees and taxes within fourteen (14) days after the applicable due date will be deemed a material breach of this Agreement, justifying BrettAtkin Design's suspension of its performance of the Hosting and/or termination of this Agreement. customer are responsible for any fees associated with reinstatement of Hosting. Any such suspension or termination would not relieve customer from paying past due fees plus interest. In the event of collection enforcement, customer will be liable for any costs associated with such collection, including, without limitation, reasonable attorneys' fees, court costs and collection agency fees.

Uptime Guarentee

In the case that BrettAtkin Design fails to provide uptime equal to 99.95%, customer shall be credited an amount that is equal to the prorated amount of time that service was not available. The credited amount shall be rounded to the nearest quarter hour, and shall be applied at the subscribed billing amount, including any discounts given. For the first one (1) hour of downtime, the amount of the refunded customer payment shall be equal to the pro-rated equivalent per hour rate, refunded to the customer at a multiple of one (1) times. For the second hour to sixth hour, the amount of the refunded customer payment shall be equal to the pro-rated equivalent per hour rate, refunded to the customer at a multiple of two (2) times. For any downtime extending beyond the sixth hour, the amount of the refunded customer payment shall be equal to the pro-rated equivalent per hour rate, refunded to the customer at a multiple of four (4) times. In no event, shall the refunded amount for any period of unscheduled downtime exceed the amount paid to BrettAtkin Design in one calendar month for the Hosting service provided.

Termination

Customer may cancel customer hosting service at any time for any reason with thirty (30) days notice. If thirty (30) days notice is given, all pre-payments will be returned. If cancellation date ends an any day other than the end of the month, a pro-rated amount will be billed for the final month.

If thirty (30) days notice is not given, customer will be liable for complete payment of the current month's bill, plus the next month. All pre-payments after that, will be returned.

If customer terminate customer Hosting prior to the end of the first thirty (30) days of the initial billing cycle, customer are entitled to a refund of the fees customer paid in advance for the monthly Hosting.

In the event that either party defaults in the performance of any of its material duties or obligations under this Agreement, including failure to make any payments due under this Agreement, and such default is not cured within fifteen (15) days after written notice is given to the defaulting party specifying the default, then the party not in default, after given written notice to the defaulting party, may terminate this Agreement.

All provisions of this Agreement relating to customer warranties, intellectual property rights, limitation and exclusion of liability, customer indemnification obligations and payment obligations shall survive the termination or expiration of this Agreement.

Customer’s Representations and Warranties

Customer hereby represents, warrants and agrees that during the hosting term that:

(a) customer are the owner or valid licensee of all content and have secured all necessary licenses, consents, permissions, waivers and releases for the use of the content including without limitation, all trademarks, logos, names and likenesses contained therein, without any obligation by BrettAtkin Design to pay any fees, residuals, guild payments or other compensation of any kind to any person.

(b) customer use, publication and display of the content will not infringe any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any person, or constitute a defamation, invasion of privacy or violation of any right of publicity or any other right of any person, including, without limitation, any contractual, statutory or common law right or any “moral right” or similar right however denominated.

(c) customer will comply with all applicable laws, rules and regulations regarding the content and the web site and will use the web site only for lawful purposes

(d) customer have used customer best efforts to ensure that the content is and will at all times remain free of all computer viruses, worms, trojan horses and other malicious code

(e) customer will use the hosting service only for business purposes and not for any family, household or personal use.

(f) customer are at least eighteen (18) years of age or are a duly organized and validly existing entity.

(g) customer possess the legal right and ability to enter into this Agreement.

(h) customer will use the Hosting only for lawful purposes and in accordance with this Agreement and all applicable policies and guidelines.

(i) customer will be financially responsible for the use of customer account.

(j) customer have acquired or will acquire all authorization(s) necessary for hypertext links to third-party Web sites or other content.

Customer hereby grants to BrettAtkin Design a non-exclusive, royalty-free, worldwide right and license during the hosting term to do the following:

(a) digitize, convert, install, upload, select, order, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit, distribute, publish, publicly display, publicly perform and hyperlink the Customer Content.

(b) make archival or back-up copies of the Content and the web site. Except for the rights expressly granted above, BrettAtkin Design is not acquiring any right, title or interest in or to the Content, all of which shall remain solely with customer.

Customer’s Responsibilities

Customer is solely responsible for the quality, performance and all other aspects of the Content and the goods provided through the customer web site.

Customer assumes full responsibility for providing End Users with any required disclosure or explanation of the various features of the web site and any goods as well as any rules, terms or conditions of use.

Unless the applicable Service description provides otherwise, customer are solely responsible for making back-up copies of the web site and Content.

Intellectual Property

Customer hereby grants BrettAtkin Design a non-exclusive, worldwide, and royalty-free license to use customer content as necessary for the purposes of satisfying the terms of the hosting agreement. customer expressly:

(a) grant to BrettAtkin Design a license to cache materials distributed or made available for distribution via the Hosting, including content supplied by third parties.

(b) agree that such caching is not an infringement of any of customer intellectual property rights or any third party's intellectual property rights.

All materials, including but not limited to any computer software (in object code and source code form), data or information developed or provided by BrettAtkin Design or its suppliers or agents pursuant to this Agreement, and any know-how, methodologies, equipment, or processes used by BrettAtkin Design to provide the Hosting to customer, including, without limitation, all copyrights, trademarks, patents, trade secrets and other proprietary rights are and will remain the sole and exclusive property of BrettAtkin Design or its suppliers, including but not limited to any software programs, inventions, products and/or technology innovations and methodologies utilized, developed, or disclosed by BrettAtkin Design during the term of this Agreement. Unauthorized copying, reverse engineering, decompiling, and creating derivative works based on the any such software is expressly forbidden except as permitted in this Agreement. customer may be held legally responsible for violation of any patent rights, copyright or trade secret rights that is caused or encouraged by failure to abide by the terms of this Agreement.

Customer hereby grants to BrettAtkin Design a limited right to use customer trademarks, if any, for the limited purpose of permitting BrettAtkin Design to fulfill its duties under this Agreement. This is not a trademark license and no other rights relating to the trademarks are granted by this Agreement. Specifically, but without limitation, the rights granted by this Agreement do not include the right to sublicense use of customer trademarks or to use customer trademarks with any other products or Hosting outside the scope of the Hosting provided under this Agreement. The limited trademark use rights granted under this section terminate upon termination of this Agreement.

Limited Warranty

The foregoing warranties shall not apply to performance issues or defects in the Hosting caused by factors outside of BrettAtkin Design’s reasonable control:

(a) that resulted from any actions or inactions of customer or any third parties.

(b) that resulted from customer equipment or any third-party equipment not within the sole control of BrettAtkin Design.

BrettAtkin Design makes no representations or warranties of any kind, express or implied, with respect to the hosting or any software provided under this agreement, including, without limitation, any warranty of merchantability, fitness for a particular purpose, title or non-infringement of third-party rights, and BrettAtkin Design hereby expressly disclaims the same. without limiting the foregoing, any third-party software provided to customer hereunder is provided “as is” without any condition or warranty whatsoever. BrettAtkin Design does not warrant that the hosting will be uninterrupted, error-free or completely secure.

Limitation of Liability

BrettAtkin Design provides the public with access to the web sites of its' customers as stored in electronic form. Because such electronic data can be corrupted or lost regardless of what protections are provided and because publicly available web sites are subject to potential infiltration or hacking by third parties, BrettAtkin Design cannot be held liable for lost data, any lost profits or other damages. customer is expected to maintain independent backup copies of any data stored on a server stored with BrettAtkin Design. as a result, the following limitations of liability apply regardless of the legal basis for any claim against BrettAtkin Design and will apply to any losses caused by the actions, omissions, or negligence of BrettAtkin Design or its' agents or employees.

BrettAtkin Design cannot guarantee continuous service, service at any particular time, integrity of data, information or content stored or transmitted via the internet. BrettAtkin Design will not be liable for any unauthorized access or any corruption, erasure, theft, destruction, alteration or inadvertent disclosure of, data, information or content transmitted, received or stored on its system.

Except as expressly provided below, neither party shall be liable in any way to the other party or any other person for any lost profits or revenues, loss of use, loss of data or costs of procurement of substitute goods, licenses or hosting or similar economic loss, or for any punitive, indirect, special, incidental, consequential or similar damages of any nature, whether foreseeable or not, under any warranty or other right hereunder, arising out of or in connection with the performance or non-performance of any order, or for any claim against the other party by a third party, regardless of whether it has been advised of the possibility of such claim or damages.

Customer shall defend, indemnify and hold harmless BrettAtkin Design, its affiliates and their respective present, former and future officers, directors, employees and agents, and their respective heirs, legal representatives, successors and assigns (collectively the “BrettAtkin Design Indemnitees”), from and against any and all losses, damages, costs, liabilities and expenses (including, without limitation, amounts paid in settlement and reasonable attorneys’ fees) which any of the BrettAtkin Design Indemnitees may suffer, incur or sustain resulting from or arising out of:

(a) customer breach of any representation, warranty, or covenant contained in the Agreement.

(b) the Content, the web site or any End User’s use of the Content or the web site.

(c) violation by customer or any of customer officers, directors, employees or agents of the Acceptable Use Policy or any applicable law.

(d) claims or actions of third parties alleging misappropriation of trade secrets or infringement of patents, copyrights, trademarks or other intellectual property rights arising from the use, display or publication of customer domain names, the web site, the Content, or the use of the Hosting in combination with hardware, software or content not provided by BrettAtkin Design.

(e) claims or actions by third parties relating to or arising out of customer use of the Hosting.

(f) any failure of the Content or any aspect of the web site to be compatible with the hardware or software used by BrettAtkin Design to provide the Hosting, including any damage to BrettAtkin Design’s servers or other hardware caused thereby.

BrettAtkin Design assumes no liability for infringement claims arising from:

(a) use of the Hosting with third-party products or Hosting where the third-party products or Hosting cause the infringement.

(b) any modification of the Hosting not authorized by BrettAtkin Design in writing.

(c) the Content, the web site or any content, data or information provided or supplied by an End User.

(d) customer use of any third-party software provided hereunder.

BrettAtkin Design is not responsible in any manner for any nonconforming Hosting services to the extent caused by customer or customer customers. In addition, BrettAtkin Design is not responsible for loss or corruption of data in transmission, or for failure to send or receive data due to events beyond BrettAtkin Design's reasonable control.

Confidentiality

Customer agrees that customer will not at any time during or after the term of this agreement disclose any information regarding this agreement or subsequent without prior consent from BrettAtkin Design.

BrettAtkin Design agrees that it will not at any time during or after the term of this agreement disclose any information regarding this agreement without customer prior consent.

Enforcement

BrettAtkin Design may investigate any reported or suspected violation of this Agreement, its policies or any complaints and take any action that it deems appropriate and reasonable under the circumstance to protect its systems, facilities, customers and/or third parties. BrettAtkin Design will not access or review the contents of any e-mail or similar stored electronic communications except as required or permitted by applicable law or legal process.

BrettAtkin Design reserves the right and has absolute discretion to restrict or remove from its servers any content that violates this Agreement or related policies or guidelines, or is otherwise objectionable or potentially infringing on any third party's rights or potentially in violation of any laws. If BrettAtkin Design becomes aware of any possible violation by customer of this Agreement, any related policies or guidelines, third party rights or laws, BrettAtkin Design may immediately take corrective action, including, but not limited to:

(a) issuing warnings

(b) suspending or terminating the Hosting Service

(c) restricting or prohibiting any and all uses of content hosted on BrettAtkin Design's systems, and/or

(d) disabling or removing any hypertext links to third-party Web sites, any of customer content distributed or made available for distribution via the Hosting, or other content not supplied by BrettAtkin Design which, in BrettAtkin Design's sole discretion, may violate or infringe any law or third-party rights or which otherwise exposes or potentially exposes BrettAtkin Design to civil or criminal liability or public ridicule.

It is BrettAtkin Design's policy to terminate repeat infringers. BrettAtkin Design's right to take corrective action, however, does not obligate us to monitor or exert editorial control over the information made available for distribution via the Hosting. If BrettAtkin Design takes corrective action due to such possible violation, BrettAtkin Design shall not be obligated to refund to customer any fees paid in advance of such corrective action.

To comply with applicable laws and lawful governmental requests, to protect BrettAtkin Design's systems and customers, or to ensure the integrity and operation of BrettAtkin Design's business and systems, BrettAtkin Design may access and disclose any information it considers necessary or appropriate, including, without limitation, user profile information (i.e., name, e-mail address, etc.), IP addressing and traffic information, usage history, and content residing on BrettAtkin Design's servers and systems. BrettAtkin Design also reserves the right to report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties.

Miscellaneous

Independent Contractor

Only individuals acknowledge and approved by BrettAtkin Design are authorized to access web site server and email for performing any site related tasks such as page additions, updates, email, autoresponders or any other tasks related to the performance, functionality and upkeep of the hosted site or hosting server.

Severability

All rights and restrictions contained in this Agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid or unenforceable. If any provision or portion of any provision of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect.

Assignment

Customer may not assign or transfer this Agreement, or any of its rights or obligations hereunder, without the prior written consent of BrettAtkin Design. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. BrettAtkin Design may assign its rights and obligations under this Agreement, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without the consent of Customer. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.

Limitation of Actions

No action, regardless of form, arising by reason of or in connection with this Agreement may be brought by either party more than one year after the cause of action has arisen.

Force Majeure

Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party’s reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for such party to perform its obligations hereunder.

Marketing

Customer agrees that during the term of this Agreement BrettAtkin Design may publicly refer to Customer, orally and in writing, as a customer of BrettAtkin Design. Any other public reference to Customer by BrettAtkin Design requires the written consent of Customer.

Bandwidth and Storage Usage

customer agree that use of the Hosting under this Agreement will not exceed the bandwidth and storage usage limits set out. If customer use any bandwidth or storage space in excess of the agreed upon number of megabytes per month, customer agree to pay the associated additional charges.

Disk Space Management

customer agree that BrettAtkin Design may utilize certain tools both automated and manual in design that allow BrettAtkin Designs support staff to maximize the efficiency of disk space utilization within Customers account space. These tools will be used to compress and archive log files for the account for the purpose of maximizing useable disk space within the account. If Customer requires archived data for statistical analysis purposes or for local copy retention, customer may request that an archived log file set be uncompressed by the BrettAtkin Design support staff. The default schedule for archiving of log files is set at one (1) week.

Scheduled Maintenance

BrettAtkin Design may from time to time schedule network maintenance periods resulting in network interruptions. These maintenance periods will be announced in advance via e-mail to the primary technical contact for the account. These maintenance periods shall be exempt from the uptime guarantee contained herein, and a credit will be provided only in the event that the scheduled downtime extends beyond the announced maintenance window. BrettAtkin Design agrees to make all reasonable effort to limit direct maintenance on customer equipment to one (1) time each week. The preferred maintenance window will be Sunday morning from 1:00AM EST to 3:00AM EST. Customer acknowledges that BrettAtkin Design may from time to time be required to perform emergency maintenance activities to the network and supporting equipment. Customer agrees that these maintenance activities fall outside of the scope of customer operated equipment and may lead to downtime and latency. Customer waives all claims relating to these announced indirect maintenance outages.

Entire Agreement

This Agreement and all policies and guidelines incorporated in this Agreement by reference constitutes the entire Agreement of the parties and may not be modified or altered orally but only by an agreement in writing signed by both parties.

No Fiduciary Relationship

No Third-Party Beneficiaries. BrettAtkin Design is not the agent, fiduciary, trustee or other representative of customer. Nothing expressed or mentioned in or implied from this Agreement is intended or shall be construed to give to any person other than the parties hereto any legal or equitable right, remedy or claim under or in respect to this Agreement. This Agreement and all of the representations, warranties, covenants, conditions and provisions hereof are intended to be and are for the sole and exclusive benefit of the parties hereto.

No Waiver

BrettAtkin Design's failure to enforce the strict performance of any provision of this Agreement will not constitute a waiver of BrettAtkin Design's right to subsequently enforce such provision or any other provisions under this Agreement.

Choice of Law and Forum

This agreement will be governed by the laws of the United States and the state of Indiana, without reference to rules governing choice of laws. Any action relating to this agreement must be brought in the federal or state courts located in Indiana, and customer irrevocably consent to the jurisdiction of such courts.