Ontrack Webhosting Services

We ask that you please read this entire agreement in its entirety and review the general provisions of our Terms of Service Policy for Ontrack Webhosting Services.

Our hosting services are being offer to you on your acceptance without modification to these terms of this Terms of Service Policy. Your use of our hosting services constitutes your agreement to these terms of use. Your use of our services may also be subject to additional restrictions specified in this document, or on Ontrack's website or in other accompanying documentation.

You agree to familiarize yourself with Ontrack's Terms of Service Policy as well as Ontrack's Acceptable User Policy, and abide by them if you choose to use our services to which such policy or terms apply. If you have any questions about something you do not understand in our policy it is your responsibility to ask us for clarification.

Modifications and Updates to the Terms of Service Policy

Ontrack Webhosting Services reserves the right to change the Terms of Service Policy at anytime. You are still responsible for regulary reviewing these terms and conditions. Continued use of Ontrack's Services after any such changes shall constitue your consent to such changes. Ontrack will make every attempt possible to notify you of any changes to this policy via email but does not and will not assume and obligation to notify you of any changes to our Terms of Service Policy.

1. Services Subject to the terms of this Agreement, and contingent on Customer's satisfaction of Ontrack's credit approval requirements, Ontrack agrees to provide the web hosting services described in the Order for the fees stated in the Order.

2. Term The term of the Agreement shall begin on the date that Ontrack generates an e-mail message to Customer announcing the activation of the Customer's account (the “ Service Commencement Date ”) and shall automatically renew on a month to month basis: unless Ontrack or Customer provides the other with written notice of non-renewal at least thirty (30) days prior to the month they would like to discontinue their service.

3. Payments

•  Accounts New hosting accounts will NOT be created or made available (online) for use until we have received your payment for your first month of service. All payments are to be received in advance of the moth that they are to be applied to, you will have 15 days after the payment deadline to get your payment to us or your account will be temporarily suspended (off line) until we receive your payment. Payments may be sent by either mail or Paypal in the form of a United Stated Post Service Money Order or Paypal. Any account that goes over 90 days suspended due to non payment will have their account permanently deleted and content will be Unrecoverable. Any account that leaved an owed balance of a determined amount by Ontrack and is not paid off in a timely manner we WILL turn your account over to a collections agency for recovery of the funds at your expense.

(b) Fees / Billing Fees are to be paid in advance of the first day of each billing cycle. Customer's billing cycle shall be a calendar month. Ontrack requires payment in full before beginning service. If the Order provides for credit/debit card billing, Customer authorizes Ontrack to bill subsequent fees to the credit/debit card on or after the first day of each billing cycle during the Term of this Agreement; otherwise Ontrack will invoice Customer via electronic mail to the Primary Customer Contact listed on the Order. Invoiced fees may be issued on or before the 1 st day of each billing cycle, and the fees shall be due by the 15 th day following invoice date, but in no event earlier than the first day of each billing cycle. Accounts that are unpaid after 15 days of the invoice will be considered past due, and may be subject to suspension of their account.

Payments must be made in United States dollars. Customer is responsible for providing Ontrack with changes to billing information (such as credit card expiration, change in billing address) At its option, Ontrack may accure charges to be made to a credit/debit card until such charges exceed $10.00. Ontrack may charge interest on overdue amounts at the lesser of 1.5% per month or the maximum non-usurious rate under applicable law. Ontrack may suspend the service without notice if payment for the service is overdue. Fees not disputed within sixty (60) days of due date are conclusively deemed accurate. Customer agrees to pay Ontrack's reasonable reinstatement fee of $25.00 following a suspension of service for non-payment, and to pay Ontrack's reasonable costs of collection of overdue amounts, including collection agency fees, attorney fees and court costs.

(c) Fee Increases Ontrack may increase its fees for services effective the first day of a Renewal Term by giving notice to Customer of the new fees at least thirty (30) days prior to the beginning of the Renewal Term, and if Customer does not give a notice of non-renewal as provided in Section 2 above, the Customer shall be deemed to have accepted the new fee for that Renewal Term and any subsequent Renewal Terms (unless the fees are increased in the same manner for a subsequent Renewal Term).

(d) Taxes at Ontrack's request Customer shall remit to Ontrack all sales, VAT or similar tax imposed on the provision of the services (but not in the nature of an income tax on Ontrack), regardless of whether Ontrack fails to collect the tax at the time the related services are provided.

(e) Early Termination Customer acknowledges that the amount of the fee for the service is based on Customer's agreement to pay the fee for the entire Term, as applicable. In the event Ontrack terminates the Agreement for Customer's breach of the Agreement in accordance with Section 9 (Termination), or Customer terminates the service other than in accordance with Section 9 (Termination) for Ontrack's breach, the unpaid fees for each billing cycle remaining in the Term or then-current Renewal Term, as applicable, are due on the business day following termination of the Agreement. If you wish to cancel your account with us please submit a letter in writing indicating such desire either via email or fax at least 30 days in advance of your next months billing period.

4. Law/AUP Customer agrees to use the service in compliance with applicable law and Ontrack's Acceptable Use Policy posted at http://www.ontrackwebhosting.net/aup.html (the “ AUP ”), which is hereby incorporated by reference in this Agreement. Customer agrees that Ontrack may, in its reasonable commercial judgment consistent with industry standards, amend the AUP from time to time to further detail or describe reasonable restrictions and conditions on Customer's use of the Services. Amendments to the AUP are effective on the earlier of Ontrack's notice to Customer that an amendment has been made, or the first day of any Renewal Term that begins subsequent to the amendment. Customer agrees to cooperate with Ontrack's reasonable investigation of any suspected violation of the AUP. In the event of a dispute between Ontrack and Customer regarding the interpretation of the AUP, Ontrack's commercially reasonable interpretation of the AUP shall govern.

5. Customer Information Customer represents and warrants to Ontrack that the information he, she or it has provided and will provide to Ontrack for purposes of establishing and maintaining the service is accurate. If Customer is an individual, Customer represents and warrants to Ontrack that he or she is at least 18 years of age. Ontrack may rely on the instructions of the person listed as the Primary Customer Contact on the Order with regard to Customer's account until Customer has provided a written notice changing the Primary Customer Contract.

6. Indemnification Customer agrees to indemnify and hold harmless Ontrack, Ontrack's affiliates, and each of their respective officers, directors, agents, and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorneys fees) brought by a third party under any theory of legal liability arising out of or related to the actual or alleged use of Customer's services in violation of applicable law or the AUP by Customer or any person using Customer's log on information, regardless of whether such person has been authorized to use the services by Customer.

7. Disclaimer of Warranties

ONTRACK DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW ONTRACK DISCLAIMS ANY AND ALL WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL SERVICES ARE PROVIDED ON AN “AS IS” BASIS.

8. Limitation of Damages

NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE, ARISING IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILIY OF SUCH DAMAGES.

NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF ONTRACK AND ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL BE A PAYMENT OF MONEY NOT TO EXCEED THE AMOUNT PAYABLE BY CUSTOMER FOR THREE MONTHS OF SERVICE.

9. Suspension/Termination

(a) Suspension of Service Customer agrees that Ontrack may suspend services to Customer without notice and without liability if: (i) Ontrack reasonably believes that the services are being used in violation of the AUP; (ii) Customer fails to cooperate with any reasonable investigation of any suspected violation of the AUP; (iii) Ontrack reasonably believes that the suspension of service is necessary to protect its network or its other customers, or (iv) as requested by a law enforcement or regulatory agency. Customer shall pay Ontrack's reasonable reinstatement fee if service is reinstituted following a suspension of service under this subsection.

(b) Termination The Agreement may be terminated by Customer prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability if Ontrack fails in a material way to provide the service in accordance with the terms of the Agreement and does not cure the failure within ten (10) days of Customer's written notice describing the failure in reasonable detail. The Agreement may be terminated by Ontrack prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability as follows: (i) upon ten (10) days notice if Customer is overdue on the payment of any amount due under the Agreement; (ii) Customer materially violates any other provision of the Agreement, including the AUP, and fails to cure the violation within thirty (30) days of a written notice from Ontrack describing the violation in reasonable detail; (iii) upon one (1) days notice if Customer's Service is used in violation of a material term of the AUP more than once, or (iv) upon one (1) days notice if Customer violates Section 5 (Customer Information) of this Agreement. Either party may terminate this agreement upon ten (10) days advance notice if the other party admits insolvency, makes an assignment for the benefit of its creditors, files for bankruptcy or similar protection, is unable to pay debts as they become due, has a trustee or receiver appointed over all or a substantial portion of its assets, or enters into an agreement for the extension or readjustment of all or substantially all of its obligations.

Requests for Customer Information Customer agrees that Ontrack may, without notice to Customer, (i) report to the appropriate authorities any conduct by Customer or any of Customer's customers or end users that Ontrack believes violates applicable law, and (ii) provide any information that it has about Customer or any of its customers or end users in response to a formal or informal request from a law enforcement or regulatory agency or in response to a formal request in a civil action that on its face meets the requirements for such a request.

Back Up Copy Customer agrees to maintain a current copy of all content hosted by Ontrack not withstanding any agreement by Ontrack to provide back up services.

Changes to Ontrack's Network Upgrades and other changes in Ontrack's network, including, but not limited to changes in its software, hardware, and service providers, may affect the display or operation of Customer's hosted content and/or applications. Ontrack reserves the right to change its network in its commercially reasonable discretion, and Ontrack shall not be liable for any resulting harm to Customer.

Notices Notices to Ontrack under the Agreement shall be given via electronic mail to the e-mail address posted for customer support at info at ontrackwebhosting dot net. Notices to Customer shall be given via electronic mail to the individual listed as the Primary Customer Contact on the Order. Notices are deemed received on the day transmitted, or if that day is not a business day, on the first business day following the day delivered. Customer may change his, her or its notice address by a notice given in accordance with this Section.

Force Majeure Ontrack shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond Ontrack's control, including, without limitation, significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.

Governing Law/Disputes The Agreement shall be governed by the laws of the State of Indiana, exclusive of its choice of law principles, and the laws of the United States of America, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL BE THE STATE AND FEDERAL COURTS IN LAKE COUNTY, INDIANA, AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO.

Miscellaneous Each party acknowledges and agrees that the other party retains exclusive ownership and rights in its trademarks, service marks, trade secrets, inventions, copyrights, and other intellectual property. Neither party may use the other party's name or trade mark without the other party's prior written consent. The parties intend for their relationship to be that of independent contractors and not a partnership, joint venture, or employer/employee. Neither party will represent itself to be agent of the other. Each party acknowledges that it has no power or authority to bind the other on any agreement and that it will not represent to any person that it has such power or authority. This Agreement may be amended only by a formal written agreement signed by both parties. The terms on Customer's purchase order or other business forms are not binding on Ontrack unless they are expressly incorporated into a formal written agreement signed by both parties. A party's failure or delay in enforcing any provision of the Agreement will not be deemed a waiver of that party's rights with respect to that provision or any other provision of the Agreement. A party's waiver of any of its right under the Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not. The captions in the Agreement are not part of the Agreement, but are for the convenience of the parties. The following provisions will survive expiration or termination of the Agreement: Fees, indemnity obligations, provisions limiting liability and disclaiming warranties, provisions regarding ownership of intellectual property, these miscellaneous provisions, and other provisions that by their nature are intended to survive termination of the Agreement. There are no third party beneficiaries to the Agreement. Neither insurers nor the customers of resellers are third party beneficiaries to the Agreement. Customer may not transfer the Agreement without Ontrack's prior written consent. Ontrack's approval for assignment is contingent on the assignee meeting Ontrack's credit approval criteria. Ontrack may assign the Agreement in whole or in part.

This Agreement together with the Order and AUP constitutes the complete and exclusive agreement between the parties regarding its subject matter and supercedes and replace any prior understanding or communication, written or oral.