Terms Of Service Agreement - SERVERGROVE.COM

Process Consulting, Inc. dba ServerGrove

Version Date: July 15th 2012

General:

Process Consulting, Inc. dba ServerGrove (“ServerGrove”) provides services (“Services”) to its customers (each, a “Customer”) under terms set forth in this Terms of Service Agreement (this “Agreement”).

BY COMPLETING THE REGISTRATION PROCESS, WHICH PROCESS INCLUDES A STEP BY WHICH CUSTOMER AFFIRMATIVELY ACCEPTS THIS AGREEMENT, CUSTOMER: (a) agrees to be bound by this Agreement; (b) represents and warrants that, if Customer is an individual, Customer is 18 years old or older or, if Customer is an entity, that Customer is a corporation, partnership, or other legal entity duly formed (and incorporated if applicable) in good standing where required to do business with all legal authority and power to accept this Agreement; (c) agrees to provide true, accurate, current, and complete information during the registration process, including billing and payment-related information and other account information, and agrees to maintain and update this information to keep it true, accurate, current, and complete; (d) agrees to be bound by the terms of the ICANN Uniform Domain Name Dispute Resolution Policy located at http://www.icann.org/udrp/udrp.htm as may be amended or relocated from time to time; and (e) represents and warrants that Customer has the power and authority to enter into and perform under this Agreement. If this Agreement or any future changes are unacceptable to Customer, Customer’s sole remedy is to cancel the Services. IF CUSTOMER DOES NOT ACCEPT AND AGREE TO THIS AGREEMENT, CUSTOMER SHOULD NOT COMPLETE THE REGISTRATION PROCESS. IF CUSTOMER DOES NOT AGREE TO ABIDE BY THIS AGREEMENT, THEN SUCH CUSTOMER IS NOT PERMITTED TO USE THE SERVICES.

IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY, ITS AFFILIATES AND ALL USERS WHO ACCESS OUR SERVICES THROUGH YOUR ACCOUNT TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY, ITS AFFILIATES AND USERS ASSOCIATED WITH IT.

If ServerGrove provides or resells certain software or services to Customer, Customer understands and agrees that Customer may be bound by additional terms and conditions imposed by third-party resellers or licensors, which are also hereby incorporated herein by reference.

Customer agrees to abide by the laws of the United States and of the state and country in which Customer is located, including, but not limited to, all intellectual property laws, tariff regulations, export controls, treaties, and international laws.

ServerGrove may periodically change, modify, or update this Agreement. Notice will be provided by posting new versions on the ServerGrove website, with the version dates as indicated at the top of this Agreement. In ServerGrove’s discretion, notice may also be provided by posting a notice on the ServerGrove homepage, and/or by email notification made to the email indicated in Customer’s Client Area. Therefore, Customer needs to ensure that contact information in the Client Area is kept up to date. The changes, modifications or updates to this Agreement will become effective 30 days following the posting of the new version, or other notice that may be provided by ServerGrove. Continued use of the Services after such 30 day notice period will constitute Customer’s acceptance of a new version of this Agreement. Please refer to this Agreement regularly to remain updated as to current terms of this Agreement. Changes to this Agreement that affect dispute resolution provisions will only be applicable for disputes arising after the effective date of a new version of this Agreement. Customer agrees that ServerGrove may send Customer service-related or other notices by e-mail rather than by postal mail.

Customer agrees to maintain the confidentiality of the Customer account, and to not share the account password, security question answers, or any other confidential information about Customer’s account with others.

Customer will be provided login for Customer’s users. A login may only be used by a single individual and may not be shared with or used by multiple individuals. Customer may create separate logins for as many individuals as the applicable plan allows.

The Infringement Policy, the Privacy Policy, the eNom Registration Agreement (http://www.enom.com/terms/agreement.asp), the Tucows Registration Agreement (see Appendix B at http://www.opensrs.com/docs/contracts/Services_Agreement.html), Appendix A (Virtual Private Server Services), and Appendix B (Shared Server Services) each are hereby incorporated into this Agreement by reference, and all such documents are collectively referred to herein as “this Agreement”.

Prohibited Uses:

Customer agrees that Customer will not knowingly use the Services, among other things, to:

(a) upload, post, email, transmit, or otherwise make available any content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable;

(b) harm minors in any way;

(c) impersonate any person or entity, including but not limited to a ServerGrove official, forum leader, guide, or host, or falsely state or otherwise misrepresent Customer’s affiliation with a person or entity;

(d) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Services;

(e) upload, post, email, transmit, or otherwise make available any content that Customer does not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary, and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);

(f) upload, post, email, transmit, or otherwise make available any content that infringes any patent, trademark, trade secret, copyright, or other proprietary rights of any party;

(g) upload, post, email, transmit, or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;

(h) upload, post, email, transmit, or otherwise make available any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;

(i) interfere with or disrupt the Services or servers or networks connected to the Service, or disobey any requirements, procedures, policies, or regulations of networks connected to the Services;

(j) intentionally or unintentionally violate, attempt to violate, or avoid any applicable ICANN regulation or policy;

(k) intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, and any regulations having the force of law;

(l) provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act;

(m) “stalk” or otherwise harass another;

(n) promote or provide instructional information about illegal activities, promote physical harm or injury against any group or individual, or promote any act of cruelty to animals; or

(o) collect, transmit, or store any type of adult, mature, or sexually explicit content.

Mail Servers:

ServerGrove provides access to its email servers to its Virtual Private Server Services Customers and Shared Server Services Customers. Customers using the ServerGrove email servers must comply with the following requirements: (1) all email recipients must have affirmatively and expressly opted in to receive Customer’s emails, and Customer will maintain for as long as Customer is using the email servers verifiable records evidencing such opt in requests, (2) all emails and Customer’s management of its email usage will comply with the U.S. CAN-SPAM Act of 2003 and all other applicable anti-spam laws and regulations, and (3) Customer will not purchase email lists for use on the mail servers. ServerGrove may, without notice, block a Customer’s access to the mail servers if ServerGrove determines, in its sole discretion, that (i) Customer has violated the requirements of this Section or other terms of this Agreement, (ii) Customer’s usage levels have or may negatively impact the operation of the mail servers, or (iii) Customer’s usage may cause ServerGrove to incur costs or be subject to liability or other harm to ServerGrove’s business.

MongoHosting.com:

ServerGrove offers Customers MongoHosting.com, a database as a service (DBaaS) for MongoDBs. MongoHosting.com offers both shared and dedicated instances of MongoDBs. Customers may manage multiple MongoDBs. In addition, to the paid version of MongoHosting.com, ServerGrove also offers a free version which a Customer can use to manage MongoDBs that are not hosted by ServerGrove. ServerGrove takes no responsibility for any MongoDBs managed using the free version that are not located on ServerGrove’s servers. ServerGrove offers a thirty (30) day free trail program for the MongoHosting.com service. Only one (1) free account may be maintained by a Customer.

Rep.to:

ServerGrove offers Customers Rep.to, a rpm and deb package repository hosting service. Open source repositories can be hosted for free. Customer is fully and solely responsible for all code and programs that a Customer uploads to the Customer repository and all damages arising any party’s use of code and programs in the Customer repository. Customers may only upload code and programs to the Customer repository if Customer is authorized to distribute such code and programs.

API Terms:

Customers may access their account data via an API (Application Program Interface). Any use of the API, including use of the API through a third-party product that accesses the account, is governed by this Agreement. Abuse or excessively frequent requests to an account via the API may result in the temporary or permanent suspension of Customer’s account’s access to the API. ServerGrove, in its sole discretion, will determine whether abuse or excessive usage of the API has occurred. ServerGrove will make a reasonable attempt via email to warn Customer prior to suspension, but failure to provide such notice shall not subject ServerGrove to any liability. ServerGrove reserves the right at any time, acting in its sole discretion, to modify or discontinue, temporarily or permanently, Customer’s access to the API (or any part thereof) with or without notice.

Fees and Billing:

Customer agrees to pay for the Services that Customer selects. The fees may include setup fees, monthly fees, quarterly fees, annual fees, usage fees, web traffic fees, late fees, and other fees. Customer 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 imposed on, or with respect to, the Services under this Agreement.

Applicable setup fees and the fees due for the first service billing period (e.g., first month, first quarter, first year, first two years) are both due on the initial Services start date. Customer may elect to change the billing period at any time; however, the new billing period will only take effect at the time of the plan period renewal. ServerGrove may change the pricing for new Services at any time and for existing services at the beginning of any new billing period. Fees are paid in advance and are non-refundable, except that refunds are available in accordance with the 30-day money back guarantee described below. Refunds will be provided by the same payment method of the original payment.

All payments are due on the account statement date. The account statement date is the anniversary (monthly, quarterly, annually or bi-annually) of the date the initial Services start date. If Customer provides ServerGrove credit or debit card information, Customer authorizes ServerGrove to automatically charge Customer’s credit or debit card for charges that apply to Customer’s account. Recurring charges will be posted to Customer’s credit or debit card until such time that Customer cancels Customer’s account. Charges subsequent to an initial order will accumulate in Customer’s account until such charges exceed $9.95. ServerGrove will then automatically charge Customer’s credit or debit card on the next account statement date. Customer is responsible for updating, or notifying ServerGrove, of any changes to Customer’s credit or debit card (including, but not limited to card number, expiration date, billing address, or card status). Customers not paying by credit or debit card agree to make payment of their balance due within 10 days of the account statement date. ServerGrove does not mail paper invoices or statements. Statements can be viewed and printed through the Client Area.

ServerGrove may charge Customer a late fee equal to the greater of $5 or interest on unpaid balances at the lesser of the rate of 1.5% per month or the maximum rate allowed by law. ServerGrove may use a third-party service to collect unpaid amounts and may charge Customer attorney’s, collection, or other reasonable fees incurred to collect unpaid balances.

If Customer disputes a charge, Customer must pay the whole amount to avoid service interruption and notify ServerGrove about the disputed amount. If ServerGrove validates Customer’s claim, Customer’s account will be credited with the validated amount. ServerGrove will not review or accept any billing error claims submitted more than ninety (90) days after disputed charges were incurred.

Customer specifically understands and agrees that for each “chargeback” Customer initiates to Customer’s credit card for fees paid to ServerGrove that Customer will be liable to ServerGrove (and ServerGrove may collect from Customer) a “chargeback fee” in the amount of $25.00. Additionally, Customer will be charged a $25.00 fee for all returned checks. ServerGrove does not charge fees for accepting payment via domestic bank wire, however, international wire transfers may be assessed a $20.00 processing fee by an intermediary bank. In addition, Customer’s issuing bank may also charge a fee for sending the wire. Please add these fees to the amount that Customer is sending to ServerGrove or the amount credited to Customer’s account will be less than the intended payment.

Customer will be liable for all unfunded term commitments on Customer’s account. For example, if Customer signed up for one (1) year of service and cancels the account (or the account is terminated) after five (5) months, the unpaid fees for the remainder of the term commitment will automatically accelerate and Customer will immediately become liable for all unpaid charges on Customer’s account.

Charges for bundled Services will be “unbundled” if a portion of the bundle of Services is terminated. For example, if Customer received a free domain name registration when Customer initiated web hosting and Customer terminates the web hosting Services before the end of the initial term, Customer will be charged at that time for the previously bundled domain name registration.

Customer understands and agrees that Customer is responsible for any network bandwidth, memory over usage, or other overage charges Customer incurs for using the Services, even if such overages arise due to Customer’s failure to protect Customer’s password or account privacy.

If Customer wishes to reactivate a closed account, Customer will not be assessed a reactivation fee. A $100 fee will be assessed if ServerGrove restores data files to a reactivated account.

30-Day Money Back Guarantee: Each of ServerGrove’s shared hosting plans carries a 30-day unconditional money back guarantee. If Customer is not completely satisfied with ServerGrove’s services or support within the first 30 days, Customer will be given a full refund of the fees paid in advance (excluding setup fees) upon plan cancellation. The following services do not qualify for the 30-day money back guarantee: additional items and services; domain name registration; items and services ordered through a reseller program; and overage fees. Upon cancellation, Customer agrees to pay $9.00 for the domain name if Customer acquired it during a free domain registration promotion.

Account Changes; Cancellation:

There is no upgrade fee, Customer will be credited the difference between the new and former plan. There is no upgrade fee for upgrading to a higher priced plan, however, Customer will be charged any difference between the new and former plans. Credits for downgrades will be pro-rated and credits will be applied to account balance. Credits are not refundable in cash or other payment and will only be applied to account balance.

ServerGrove encourages customers to merge hosting plans contained in two or more accounts into one account. There is no fee for this service. Customers may also request that ServerGrove separate one or more plans contained under one account into separate accounts.

Hosting plans will automatically renew until a plan is cancelled. In order to cancel service, Customer should go to the Cancel Account link in the Client Area. Alternatively, Customer may contact ServerGrove’s customer service representatives, Monday through Friday, 9:00 A.M. to 5:00 P.M. Eastern Time, at 1-786-999-6585 or via email at help@ServerGrove.com. Cancellation requests must be received by ServerGrove a minimum of 30 days prior to the end of a billing cycle for all server plans. Cancellations submitted later than this time may result in automatic renewal of the hosting plan. Cancellations become effective on the day processed by ServerGrove. ServerGrove is unable to cancel an account effective for a future date. ServerGrove will confirm the cancellation request when it is processed. If Customer does not receive a confirmation, please contact ServerGrove as soon as possible.

Ownership:

Customer understands and agrees that (a) ServerGrove or any applicable licensor retains all rights, title, and interest in and to any computer programming, formatting code, operating instructions, or other software used in providing the Services to Customer and (b) that Customer will not, and will not facilitate another to, reverse engineer, disassemble, decompile, or otherwise attempt to derive any source code of any software.

Backups:

For its own operational efficiencies and purposes, ServerGrove backs up data on the virtual private servers and the shared servers every 24 hours (which back ups are deleted after 7 days), but ServerGrove is under no obligation or duty to perform backups under this Agreement. IT IS SOLELY CUSTOMER’S DUTY AND RESPONSIBILITY TO BACKUP CUSTOMER’S FILES AND DATA, AND UNDER NO CIRCUMSTANCE WILL SERVERGROVE BE LIABLE TO ANYONE FOR DAMAGES OF ANY KIND UNDER ANY LEGAL THEORY FOR LOSS OF CUSTOMER FILES AND/OR DATA ON ANY SERVERGROVE SERVER.

Domains:
If Customer registers a new domain name in conjunction with the Services, the following terms apply:

ServerGrove has chosen the registrars (the “Registrars”) set forth in the eNom Registration Agreement (http://www.enom.com/terms/agreement.asp), the Tucows Registration Agreement (see Appendix B at http://www.opensrs.com/docs/contracts/Services_Agreement.html), ICANN accredited registrars, to provide domain name registration services. Customer hereby authorizes ServerGrove to acquire Customer’s selected domain name from the Registrars. In order to receive a domain name, Customer hereby agrees to the eNom Registration Agreement, and the Tucows Registration Agreement, as applicable, as may be amended. Customer understands that Customer is hereby creating a separate contractual relationship between Customer and the Registrars, and that Customer, and not ServerGrove, is responsible for all fees, liability, and obligations in connection with that relationship. Until the Service is canceled or otherwise terminated, ServerGrove will pay on Customer’s behalf the domain registration/renewal fees as part of the Service. Customer agrees that Customer’s obligations to indemnify under the Customer indemnification below in this Agreement includes any claim or demand associated with Customer’s domain name, any domain name preregistration services provided through the Service, through the eNom Registration Agreement, or through the Tucows Registration Agreement.

Customer will be listed as the registrant and administrative contact in connection with Customer’s domain name, unless Customer chooses another registrant and administrative contact. If Customer chooses a registrant and administrative contact other than Customer, such person(s) must enter into an agreement directly with the Registrars and, additionally, will be bound by this Agreement in addition to Customer. Customer hereby authorizes ServerGrove to list ServerGrove as the billing contact, technical contact, and name server in connection with Customer’s domain name and to take any actions ServerGrove deems appropriate in those capacities. However, upon termination of the Services, ServerGrove may immediately cease acting in those capacities and reserves the right to transfer Customer’s account to the Registrars for collection of past-due amounts. In the event of such transfer, Customer authorizes the Registrars to serve as the billing contact, technical contact, and name server in connection with Customer’s domain name, and to take any actions the Registrars deem appropriate in those capacities. Upon termination of the Services, ServerGrove will not be responsible for forwarding any notices, emails, or other correspondence to Customer or taking any other actions in connection with Customer’s domain name. Customer will be solely responsible for all ongoing fees, as well as removing ServerGrove as the billing, technical contact, and name servers in connection with Customer’s domain name, unless ServerGrove notifies Customer otherwise.

Customer acknowledges that ServerGrove cannot guarantee the availability of the domain name Customer selects for use until ServerGrove receives confirmation of its order from the Registrars, which may take several business days.

Using a Preexisting Domain Name; Change of Registrars

If Customer has previously registered a domain name with another provider and wants to use it with the Service, Customer must request that the existing registrar change the name servers for the domain name as designated by ServerGrove, on Customer’s behalf.

PLEASE NOTE: THE EXISTING REGISTRAR WILL CONTINUE TO BE THE REGISTRAR FOR THAT DOMAIN, AND CUSTOMER WILL CONTINUE TO BE RESPONSIBLE FOR ALL ONGOING FEES FOR THAT DOMAIN NAME WITH CUSTOMER’S EXISTING PROVIDER, INCLUDING RENEWAL FEES. THE FEES PAYABLE TO SERVERGROVE FOR THE SERVICE DO NOT INCLUDE REGISTRATION OR RENEWAL FEES OWED BY CUSTOMER TO CUSTOMER’S EXISTING PROVIDER.

The Registrars are ServerGrove’s current registrars of record. If ServerGrove switches to another registrar of record, ServerGrove may at any time request in writing that Customer transfer the domain name registered for the Service to the new registrar of record. If Customer does not agree to this request within 30 days, Customer agrees that ServerGrove will continue to provide the Service to Customer, but may, in its sole discretion, either: (a) require Customer to pay an additional fee to ServerGrove for the Service in order to renew and maintain Customer’s domain name with the prior registrar of record; or (b) require Customer to be responsible for all fees, including any renewal fees, directly with the prior registrar of record, in which case Customer authorizes ServerGrove to cease to pay for the domain name fees as part of the Service, and change the billing contact details for the domain name from ServerGrove to Customer by providing Customer’s applicable account information to the prior registrar of record.

In order to minimize the risk of fraud, ServerGrove may at any time request Customer to verify any information required to be supplied by a registrant. If Customer fails to respond to any such request or fails to verify any required information to ServerGrove’s reasonable satisfaction, within 15 days of any such request from ServerGrove, ServerGrove may, in its sole discretion, immediately terminate Customer’s Service and remove any of Customer’s materials, including Customer’s domain name, from ServerGrove’s servers.

Monitoring and Disclosures:

All activities occurring on, in, and/or via the Services or any website hosted by ServerGrove may be monitored, recorded, and examined by any authorized person, including as well law enforcement. In general, ServerGrove does not monitor its Customer’s websites or activities to determine whether they are in compliance with this Agreement. However, when and if ServerGrove becomes aware of any violation of this Agreement, ServerGrove may take any lawful action, and in the event of illegal activity, will take action, to stop or correct such violation, including, but not limited to, shutting down a website, denying access to the Services or to the Internet via ServerGrove, and/or removing non-complying information. ServerGrove may disclose any information in its possession, including, without limitation, information about Customer, Internet transmissions and website activity in order to comply with a court order, subpoena, summons, discovery request, warrant, statute, regulation, governmental request, or other legal process to protect ServerGrove or others from harm, and/or to ensure the proper operation of the Services. ServerGrove has no obligation to notify any person, including the Customer about whom information is sought, that ServerGrove has provided the information. ServerGrove and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Services. Without limiting the foregoing, ServerGrove and its designees shall have the right to remove any content that violates this Agreement, is illegal, or is otherwise objectionable as determined in ServerGrove’s sole discretion.

Term and Termination:

This Agreement will become effective when Customer completes the acceptance procedures. This Agreement will remain in effect until its termination by either party under its terms.

ServerGrove may terminate this Agreement, at its convenience, without cause, at any time upon notice to Customer. Notwithstanding anything to the contrary herein, ServerGrove may also, but has no duty to, immediately suspend or terminate the Services, terminate Customer’s access and password, remove Customer’s Service from ServerGrove’s servers, or remove any content within the Services, if ServerGrove concludes, in its sole discretion, that Customer (a) has breached, violated, or acted inconsistently with the letter or spirit of this Agreement, including any applicable law or regulation; (b) has provided false information as part of account information; (c) has failed to keep account information complete, true, and accurate; (d) fails to respond to any email communication sent to the email address listed in account information; (e) is engaged in fraudulent or illegal activities or the sale of illegal or harmful goods or services; or (f) is engaged in activities or sales that may damage the rights or reputation of ServerGrove or others (each “Termination for Cause”). Any Termination for Cause by ServerGrove will take effect immediately, and Customer expressly agrees that Customer will not have any opportunity to cure. If Customer’s ID is terminated for any reason, this Agreement and Customer’s to the Services will also be terminated.

Customer understands and agrees that upon termination of this Agreement ServerGrove has the right to immediately bar Customer’s access to any and all content related to the Customer’s website or account. Upon any termination of the Services, ServerGrove reserves the right to permanently delete from its servers any and all information and content contained in Customer’s account or Service, including but not limited to order processing information, mailing lists, files, email, and any web pages generated by Customer or the Services. ServerGrove accepts no liability for such deleted information or content.

Limitations; Indemnification; Disclaimers:

IN NO EVENT WILL SERVERGROVE’S LIABILITY TO A CUSTOMER IN THE AGGREGATE FOR ANY AND ALL BREACHES, DEFAULTS, OR CLAIM OF LIABILITY UNDER THIS AGREEMENT EXCEED THE GREATER OF THE FEES PAID BY CUSTOMER TO SERVERGROVE DURING THE ONE (1) CALENDAR MONTH PERIOD PRECEDING THE DATE OF THE EVENT GIVING RISE TO SUCH CLAIM OF LIABILITY AND $50.00.

IN NO EVENT WILL SERVERGROVE, ITS PARENTS, SUBSIDIARIES, AFFILIATES, SHAREHOLDERS, DIRECTORS, OFFICERS, CONTRACTORS OR EMPLOYEES BE LIABLE TO CUSTOMER UNDER ANY CIRCUMSTANCES FOR ANY THIRD PARTY, SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, MULTIPLE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF DATA, LOSS OF USE, INTERRUPTION OF BUSINESS OR LOSS OF PROFITS) ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT OR THE SERVICES WHETHER BASED IN CONTRACT, WARRANTY, NEGLIGENCE OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, THE FAILURE OF ANY LIMITED OR EXCLUSIVE REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE GROUNDS, EVEN IF SERVERGROVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

CUSTOMER ACKNOWLEDGES THAT THESE LIMITATIONS ARE AN ESSENTIAL ELEMENT OF THIS AGREEMENT AND WITHOUT SUCH LIMITATIONS SERVERGROVE WOULD NOT ENTER INTO THIS AGREEMENT.

Customer agrees to indemnify, defend by counsel reasonably acceptable to ServerGrove, and protect and hold ServerGrove harmless from and against any and all claims, liabilities, losses, costs, damages, expenses, including consultants and attorneys fees and court costs, demands, causes of action, and judgments directly or indirectly arising out of or related to the Services, including, without limitation, any violation of the terms of this Agreement.

Nothing in this Agreement shall be construed as creating a joint venture, partnership, agency, employment, franchise, or other relationship between Customer and ServerGrove. Also, neither party to this Agreement shall have the right, power or authority to create any obligations or duty, express or implied, on behalf of the other.

SERVERGROVE DOES NOT WARRANT THAT THE SERVICES WILL BE FREE OF ERRORS, BE UNINTERRUPTED, OR WILL MEET CUSTOMER’S REQUIREMENTS. THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS AND SERVERGROVE EXPRESSLY DISCLAIMS ALL WARRANTIES, CONDITIONS, AND INDEMNITIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR ANY OTHER WARRANTY ARISING FROM THE COURSE OF PERFORMANCE OR COURSE OF DEALING. CUSTOMER UNDERSTANDS AND AGREES THAT SERVERGROVE WILL NOT BE LIABLE FOR ANY TEMPORARY DELAY, OUTAGE, OR INTERRUPTION OF THE SERVICES, AND CUSTOMER HAS NOT ENTERED INTO THIS AGREEMENT IN RELIANCE UPON ANY WARRANTY OR REPRESENTATION EXCEPT THOSE SPECIFICALLY SET FORTH HEREIN. ALL SERVICES PROVIDED UNDER THIS AGREEMENT WILL BE DEEMED ACCEPTED WHEN DELIVERED.

Compliance:

Customer represents and warrants that Customer is not a resident of any country or affiliated with any organization prohibited to do business within the United States as defined and set forth at: http://www.export.gov and http://www.treas.gov/ofac. Customer further represents and warrants that Customer 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 that may be imposed by the U.S. government and any country or organization of nations within whose jurisdiction Customer operates or does business. Customer agrees to comply with all applicable U.S. and non-U.S. laws, rules, regulations and orders, including, but not limited to, tax, export and import, embargo and trade sanctions, intellectual property, including copyright, content, sales, mail-order, commerce, and e-commerce laws and regulations. Customer shall be responsible for determining what laws or regulations are applicable to Customer’s use of the Services. Customer shall, upon the request of ServerGrove, provide ServerGrove assurance of Customer’s compliance with those laws. Customer acknowledges that ServerGrove exercises no control whatsoever over the content of the information passing through Customer’s site(s) and that it is Customer’s sole responsibility to ensure that the information Customer and Customer’s users transmit and receive complies with all applicable laws and regulations.

Customer is responsible for charging and collecting from Customer’s end-user customers any and all applicable taxes. If Customer fails to impose and/or collect any tax from end users or Customer’s other retail customers as required herein, then, as between ServerGrove and Customer, Customer 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 Customer has agreed to pay or impose on and/or collect from end users or Customer’s other retail customers, Customer agrees to indemnify and hold harmless ServerGrove for any costs incurred as a result of actions taken by the applicable taxing authority to collect the tax from ServerGrove due to Customer’s failure to pay or collect and remit such tax to such authority.

Miscellaneous:

Customer hereby grants ServerGrove the right to use Customer’s name and logo in marketing materials and customer listings referring to and promoting the Services. Upon written notice from Customer, ServerGrove will, within a commercial reasonable period, promptly cease using Customer’s name and logo.

This Agreement may not be assigned by Customer without ServerGrove’s express written consent. ServerGrove may assign any or all of its rights and obligations to others at any time.

This Agreement is the final expression of the agreement between a Customer and ServerGrove regarding the Services. This Agreement may not be modified or amended, nor may it be modified by custom and usage of trade or course of dealing, except by an instrument executed by ServerGrove, or as otherwise provided herein.

ServerGrove’s waiver of Customer’s breach of any portion of this Agreement shall not operate or be construed as its waiver of any subsequent breach of the same provision or any other portion of this Agreement and no remedy available to ServerGrove hereunder is exclusive of any other remedy available to ServerGrove hereunder or otherwise available at law or in equity.

If any provision of this Agreement or its application is held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this Agreement shall remain in full force and effect enforced to fullest extent consistent with applicable law.

Customer agrees that Customer will not solicit ServerGrove employees to become Customer’s employees or contractors.

The section headings contained herein are for reference purposes and convenience only and shall not in any way affect the meaning or interpretation of this Agreement.

ServerGrove shall not be deemed to be in default of or to have breached any provision of this Agreement as a result of any delay, failure in performance or interruption of the Services, resulting directly or indirectly from acts of god, acts of civil or military authority, civil disturbance, war, strikes or other labor disputes and disturbances, fire, transportation contingencies, shortages of facilities, fuel, energy, labor or materials, or laws, regulations, acts or order of any government agency or official thereof, other catastrophes, or any other circumstances beyond ServerGrove’s reasonable control.

This Agreement shall be binding on Customer and ServerGrove and Customer’s successors and assigns, and shall be governed by the laws of the state of Florida without giving effect to such state’s law provisions regarding conflict of laws. Any action arising out of or related to this Agreement shall be brought in the applicable federal or state courts located in or with jurisdiction over Dade County, Florida, and each party consents to the jurisdiction and venue of these courts. Each party expressly disclaims application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement.

Any provisions of this Agreement that, in order to fulfill the purposes of such provisions, need to survive the termination or expiration of this Agreement, shall be deemed to survive for as long as necessary to fulfill such purposes.

Any notice or communication permitted or required hereunder shall be in writing and shall be delivered in person or by courier, sent by electronic facsimile (fax), email, or mailed by certified or registered mail, postage prepaid, return receipt requested, and addressed to Customer as set forth contact information provided by Customer to Server Grove or addressed to Server Grove as set forth below, or to such other address as shall be given in accordance with this Section. If notice is given in person, by courier, fax or email, it shall be effective upon receipt; and if notice is given by mail, it shall be effective five (5) business days after deposit in the mail.

Contact Information:

ServerGrove Networks, Inc.
1101 Brickell Ave. #310323
Miami, FL 33131
email: info@servergrove.com
phone: 1.786.999.6585

Complaints: In order to resolve a complaint regarding the Services or to receive further information regarding use of the Services, please contact ServerGrove as set forth above or, if any complaint with us is not satisfactorily resolved, and Customer is a California resident, Customer can contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 400 “R” Street, Sacramento, California 95814 or by telephone at 1-916-445-1254.
APPENDIX A
Virtual Private Server (VPS) Services

The following terms apply when a Customer orders VPS Services from ServerGrove:

1. Services:

1.1. Services: ServerGrove will provide Customer with the hardware, licensed operating system, licensed web server software, and Internet connectivity level specified in the VPS plan Customer selects, including the root access password for the assigned VPS.

1.2. Support: ServerGrove will also provide Customer with reasonable customer support during ServerGrove’s standard customer support hours for the VPS plan via telephone, email (help@ServerGrove.com) and live online chat.

1.3. Restrictions: Customer agrees that Customer will not use or install unlicensed or illegitimate third party software in conjunction with the VPS server.

1.4. Excluded Support: ServerGrove will not support any of the applications referenced in Section 1.3 above. In addition, ServerGrove will not support the customers of Customer, provide training to Customer on how to configure or administer the servers, or provide support for HTML programming or any other scripting language.

1.5. IP Addresses: ServerGrove will also provide Customer with the number of IP addresses specified in the VPS plan Customer selects. Customer will not own and cannot take any IP addresses with them after the termination of the VPS account. ServerGrove cannot guarantee this IP address will never change. ServerGrove makes a reasonable effort to avoid IP address changes but due to many factors including network changes it is not possible to guarantee. Customer will be given advanced e-mail notification if such a change ever does affect Customer’s account.

1.6. Burstable RAM. VPS Customers are allotted system resources in accordance with the hosting plan ordered. However, at times more is available on each server than ordered. If a Customer requires loads to spike higher than as ordered, as long as the resources are available on the server at that time, Customer can use them, up to the burstable level. ServerGrove has monitoring systems in place to check the loads on each server and make sure that the servers are not oversold so that Customer will have their ordered resources. A Customer’s burst allotment is not the same thing as the resource allotment. A Customer is not assured constant, sustained utilization of the burst resources. If a Customer’s VPS regularly requires greater resources than the ordered hosting plan, ServerGrove will work with Customer to upgrade to a hosting plan with greater allocated resources.

1.7. 99.9% Network Uptime: The network for VPS servers will be functioning and available 99.9% of the time in any given month (except during Maintenance Windows (defined below)). Any ServerGrove breach of this guarantee will be referred to as a “Network Uptime Breach.”

1.8. Server Delivery: The ordered VPS will be setup in ServerGrove’s data center, connected to the Internet, with the operating system and control panel in place within 24 hours of ServerGrove’s receipt of a Customer’s accepted documentation. This guarantee is not applicable to custom server configurations or custom software applications. Any ServerGrove breach of this guarantee will be referred to as a “Server Setup Breach.”

1.9. Remedies: For every continuous hour a VPS experiences either a (1) a Network Uptime Breach or (2) a Server Setup Breach, ServerGrove will deduct 5% off (each a “Downtime Credit”) Customer’s charges for the following month for basic hosting services, not to exceed in the aggregate 100% of such month’s charges. Downtime Credits may not be applied against fees for add-on services, and if not completely covered by the following month’s charges, shall not be carried over to a subsequent month.

1.10. Procedures: In order to qualify for a Downtime Credit, Customer must submit a trouble ticket to ServerGrove (via the Customer’s Client Area or by calling ServerGrove support at 786.999.6585). The length of each Network Uptime Breach or Server Setup Breach (each a “Breach”) will be measured from the time the trouble ticket is received and validated by ServerGrove technicians to the time ServerGrove, in its sole discretion, considers the issue resolved.

1.11. Limitations: Customer may qualify for Downtime Credits for more than one type of Breach, but the total of Downtime Credits given in any one month may never exceed 100% of the charges for basic hosting services for that month.

1.12. Exceptions: Downtime Credits may not be issued (and any applicable Downtime Credits will be forfeited) if an account is past due or the account is suspended or cancelled by ServerGrove for violating this Agreement. In addition, Downtime Credits may not be issued if a Breach arises out of (a) any action taken by Customer or another person authorized to access Customer’s account, (b) the failure of systems, Internet infrastructure, network equipment, power, facilities, connections or services provided by a third party to ServerGrove, or (c) application, software, or operating system failures, denial of service attacks, hacker activity, or other malicious events.

1.13. Maintenance Windows: ServerGrove “Maintenance Windows” include both scheduled maintenance windows (i.e., Customer receives prior notice) and emergency maintenance windows (i.e., because of immediate threats to ServerGrove’s systems or to Customer’s server Customer receives no prior notice).

1.14. ServerGrove allows VPS server customers the use of Internet Relay Chat (IRC) inside the ServerGrove network only with ServerGrove’s prior consent and only as long as the use of IRC on a ServerGrove server does not violate any of the other terms of the Agreement. As a policy, ServerGrove will not provide vanity IRC reverse DNS records. To enforce this policy, ServerGrove does not turn the reverse address of IPs over to Customer. Authority over this information remains with ServerGrove.

2. Limited License:

Customer hereby grants to ServerGrove a limited, royalty-free, non-exclusive license to use, translate, reproduce, publish, distribute, sub-license, exploit, and/or create derivative uses of Customer’s web site and web site content anywhere, in any form, medium, or technology now known or later developed throughout the world for the sole purpose of providing VPS services under this Agreement.
APPENDIX B
Shared Hosting Services

The following terms apply when Customer orders shared server Services from ServerGrove:

1. Services: ServerGrove will provide Customer with the shared web hosting services Customer selects for Customer’s web hosting plan, including bandwidth, email addresses, and hard drive space. ServerGrove will also provide reasonable customer support during ServerGrove’s standard customer support hours for the shared web hosting services Customer selects.

2. Use:

2.1. Customer agrees to use only the services included in the web hosting plan Customer selects. Customer agrees not to run any “server applications” including any program or script that opens a port on the shared hosting server such as Internet Relay Chat (IRC) servers, IRC proxies, and IRC bots. In addition, Customer agrees not to share Customer’s shared web hosting space with others or to subdivide and resell shared web hosting space.

2.2. Any scripts that pose a potential security risk or are deemed to be adversely affecting server performance or network integrity will be shut down or will be automatically removed without prior notice. ServerGrove does not permit CGI script sharing with domains not hosted by ServerGrove or any scripts that may be abused for unsolicited email purposes.

2.3. ServerGrove does not allow shared server customers to install their own chat rooms. Chat rooms tend to require significant system resources and therefore cannot be permitted as an account option. However, for a small charge, ServerGrove provides Java chat rooms that meet most users’ needs and run without hindering system performance.

2.4. ServerGrove may allow programs to run in the background. These programs will be considered on an individual basis and shared server customers will incur extra charges based on system resources used and operational maintenance needed. If Customer wishes to run background programs please contact ServerGrove.

2.5. ServerGrove’s shared server accounts are not configured for the purposes of distributing software and/or multimedia products. If Customer wishes to distribute software and/or multimedia files, please contact ServerGrove to make special arrangements.

2.6. Multimedia files are defined as any graphics, audio, and video files. ServerGrove shared server accounts are not to be used for the purposes of distributing and storing unusual amounts of multimedia files. Any web site with disk space usage for storing multimedia files that exceeds 70% of its total usage, in terms of total size or number of files, will be considered to be used for the purposes of distributing and storing an unusual amount of multimedia files.

2.7. Any database stored on shared servers shall be limited in size to 10% of the total disk space allotted for that particular domain’s plan/web hosting account.

2.8. The cumulative amount of email stored on shared servers shall be limited in size to 30% of the total disk space allotted for that particular domain’s plan/web hosting account. Each mailbox shall be no larger than 3GB.

3. IP Addresses

Depending on the service plan selected, the plan will have either a shared or dedicated IP address associated with it. ServerGrove cannot guarantee this IP address will never change. ServerGrove makes a reasonable effort to avoid IP address changes but due to many factors including network changes it is not possible to guarantee. Customer will be given advanced e-mail notification if such a change ever does affect Customer’s account.

4. Exceeding Usage Levels:

If Customer’s use of bandwidth, email addresses, hard drive space, or other services exceeds that allotted for Customer’s current shared server account, ServerGrove will charge Customer for such overage at ServerGrove’s then current rates.

5. Limited License:

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