Brinkster Hosting Agreement

This Brinkster Communications Corporation, (hereinafter “BRINKSTER”) Hosting Agreement governs transactions by which Buyer purchases Equipment or acquires Services from BRINKSTER.

This Hosting Agreement, along with the Order For Service, the BRINKSTER Universal Terms of Service (the “TERMS OF SERVICE”), the Dedicated Server and Cloud Services Terms of Service, and the applicable Service Level Agreement comprise the entire agreement between the parties (“Agreement”) , and replaces any prior oral or written communications between Brinkster Communications Corporation (“BRINKSTER”) and Customer (“Buyer”).

The Order For Service will be a specific document given to the Buyer. If Buyer is not given a specific Order For Service, the Order For Service is defined as the total list of all the services the Buyer has requested from BRINKSTER.

THIS HOSTING AGREEMENT (“Agreement”) is by and between Customer (“Buyer”) and Brinkster Communications Corporation (“BRINKSTER”).

1. General

1.1 Acknowledgement.

This Hosting Agreement governs the Buyer’s purchase and use of all hosting services, including all Hosting Services and any other Services (collectively, the “Services”), that Buyer ordered and Brinkster Communications Corporation (“BRINKSTER”) accepts. Buyer must register and accept the terms of this Agreement in order to use the Services. BY ELECTRONICALLY SIGNING, AND /OR REGISTERING FOR AND USING THE SERVICES, BUYER ACKNOWLEDGES THAT THEY HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS AS WELL AS ALL POLICIES AND GUIDELINES INCORPORATED BY REFERENCE. BRINKSTER may modify any of the terms and conditions contained in this Agreement and any policy or guideline incorporated by reference, at any time in its sole discretion and may also determine whether and when the modifications apply to existing or future customers. Any modifications are effective upon posting of the revisions on the BRINKSTER Web site (the “Site”).

1.2 Modification by BRINKSTER.

BRINKSTER may post modifications to referenced policies and guidelines without notice to Buyer. The Buyer’s continued use of the Services following BRINKSTER’s posting of any modifications constitutes Buyer’s acceptance of the modifications. IF THE BUYER DOES NOT AGREE TO THE TERMS OF ANY MODIFICATION, THEN BUYER MUST NOT CONTINUE TO USE THE SERVICES AND IMMEDIATELY NOTIFY BRINKSTER OF BUYER’S TERMINATION OF THIS AGREEMENT IN THE MANNER DESCRIBED IN SECTION 2.2 (Termination Policy) listed BELOW.

2. Services: Term and Payment

2.1 Term.

2.2 Termination Policy.

If Buyer terminates the Services before the end of the Initial Term or the Renewal Term, whichever is then applicable: BRINKSTER will not refund to Buyer any fees paid in advance of termination, and Buyer will be required to pay 100% of the monthly charge for each month remaining in the term, unless otherwise expressly provided in this Agreement. Buyer must submit Buyer’s termination request to BRINKSTER in the manner described in Section 2.1. BRINKSTER may terminate this Agreement at any time and for any reason by providing to Buyer 30 days’ prior written notice of termination. If BRINKSTER terminates this Agreement due to Buyer’s violation of the BRINKSTER Universal Terms of Service or ANY provision of this agreement, whichever is then applicable: BRINKSTER will not refund to Buyer any fees paid in advance of termination, and Buyer will be required to pay 100% of the monthly charge for each month remaining in the term, unless otherwise expressly provided in this Agreement.

2.3 Liability and Obligations on Termination.

If the Agreement expires or is terminated for any reason, BRINKSTER is not liable to Buyer because of the expiration or termination for compensation, reimbursement or damages on account of the loss of prospective profits, anticipated sales, goodwill or on account of expenditures, investments, leases or commitments in connection with Buyer’s business, or for any other reason whatsoever flowing from the termination or expiration. If Buyer terminates this Agreement, BRINKSTER will not relieve Buyer of any obligations to pay fees and costs accrued before the termination date or any other amounts Buyer owes to BRINKSTER under this Agreement. Brinkster will not interfere with Customer's reasonable efforts to retrieve Customer's data from Brinkster's servers.

2.4 Charges.

Buyer will pay all charges for Buyer’s use of the Services at the then current BRINKSTER prices, which will be exclusive of any applicable taxes. Buyer is responsible for paying all federal, state, and local sales, use, value added, excise, duty and any other taxes assessed with respect to the Services, other than taxes based on BRINKSTER’s net income.

2.5 Payment.

Buyer will pay all charges for Services in advance according to the then current price for the Services. When registering for Services, Buyer must choose to pay for the Services either by credit card or upon Buyer’s receipt of an invoice. If Buyer chooses to pay by credit card when registering for Services, Buyer authorizes BRINKSTER to charge Buyer’s credit or debit card to pay for any charges that may apply to Buyer’s account. Buyer must notify BRINKSTER of any changes to Buyer’s card account (including, applicable account number or cancellation or expiration of the account), Buyer’s billing address, or any information that may prohibit BRINKSTER from charging Buyer’s account. If Buyer chooses to be invoiced for Services, BRINKSTER will send an invoice to Buyer for the Services for the period for which Buyer has registered for the Services. BRINKSTER may also send periodic invoices to Buyer for any applicable Supplemental Charges associated with Buyer’s use of the Services. Buyer will pay to BRINKSTER the amount indicated in each invoice by the due date reflected on the invoice. If Buyer fail to pay any fees and taxes within 10 days from the applicable due date for credit card or invoice payments, BRINKSTER will assess late charges equal to the lesser of 1.5% per month or the maximum allowable under applicable law. Buyer’s failure to fully pay any fees and taxes within 30 days after the applicable due date is a material breach of this Agreement, justifying BRINKSTER in suspending its performance, terminating this Agreement, and forwarding the account to a collections agency. If BRINKSTER terminates for Buyer’s material breach, Buyer must still pay all costs due as described in Section 2.2. The Buyer is responsible for any costs BRINKSTER incurs in enforcing collection, including reasonable attorneys’ fees, court costs and collection agency fees (except where prohibited by law). If Buyer reinstates Services, Buyer must pay any fees associated with reinstating Services.

3. Use of Services

3.1 Applicable Policies and Guidelines.

The Terms of Service, and where applicable the Dedicated Server and Cloud Services Terms of Service govern the general policies and procedures for use of the Services. BRINKSTER’s On-line Privacy Statement governs how BRINKSTER collects, stores, processes and uses information associated with Buyer’s use of the Services. The Terms of Service and the On-line Privacy Statement are posted on BRINKSTER’s Web site at www.brinkster.com (or such other location as BRINKSTER may specify) and may be updated from time-to-time. THE BUYER SHOULD CAREFULLY READ THE TERMS OF SERVICE. BY USING THE SERVICES, BUYER AGREES TO BE BOUND BY THE TERMS AND ANY MODIFICATIONS TO THE TERMS. BRINKSTER MAY TERMINATE BUYER’S ACCOUNT FOR ANY VIOLATION OF THE USAGE GUIDELINES OR THIS AGREEMENT.

3.2 Commercial Advertisements via E-Mail.

Buyer will not use BRINKSTER services, Buyer’s account or server to send or facilitate in any way the transmission of SPAM. BRINKSTER will enforce substantial penalties, including charging Buyer for related network costs and terminating Buyer’s account, for violations. Buyer agrees to comply with all U.S. regulations.

4. Intellectual Property Rights

4.1 Buyer’s Warranties And Representations to BRINKSTER.

Buyer warrants, represents, and covenants to BRINKSTER that: (a) Buyer or its representative is at least 18 years of age; (b) Buyer possesses the legal right and ability to enter into this Agreement; (c) Buyer will use the Services only for lawful purposes and in accordance with this Agreement and all applicable policies and guidelines; (d) Buyer will be financially responsible for the use of Buyer’s account; (e) Buyer has acquired or will acquire all authorization(s) necessary for hypertext links to third-party Web sites or other content; (f) Buyer has verified or will verify the accuracy of materials distributed or made available for distribution via the Services, including Buyer’s content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted, and (g) Buyer’s content does not and will not infringe or violate any right of any third party (including any intellectual property rights) or violate any applicable law, regulation or ordinance.

4.2 BRINKSTER Materials And Intellectual Property.

All materials, including any computer software (in object code and source code form), data or information that BRINKSTER or its suppliers or agents develop or provide under this Agreement, and any know-how, methodologies, equipment, or processes BRINKSTER uses to provide the Services to Buyer, including all copyrights, trademarks, patents, trade secrets, and any other proprietary rights inherent therein and appurtenant thereto will remain BRINKSTER’s or its suppliers’ sole and exclusive property. BRINKSTER will also maintain and control ownership of all Internet protocol (“IP”) numbers and addresses that BRINKSTER may assign to Buyer. BRINKSTER may, in its sole discretion, change or remove any and all IP numbers and addresses.

4.3 Data Ownership

The Customer Data belongs to Customer, and BRINKSTER makes no claim to any right of ownership in it.

4.4 BRINKSTER must keep the Customer Information confidential in accordance with Section 9 of this Agreement. Specifically, if BRINKSTER suffers an actual or suspected security incident affecting Customer Information, BRINKSTER will promptly report such information to the Customer.

4.5 BRINKSTER must use the Customer Data strictly as necessary to carry out its obligations under this Agreement, and for no other purpose. Similarly BRINKSTER must ensure that the data center containing the Customer Data meets the following physical and electronic security requirements: (i) main access monitored with additional access for emergency purposes only; (ii) surveillance cameras in facility; (iii) Biometric Access Control Security; (iv) Advanced Smoke Detection and Fire Prevention System; (v) access only to BRINKSTER Personnel and persons BRINKSTER expressly approves; (vi) 24/7/365 Monitoring by Brinkster Personnel.

4.6 BRINKSTER must take reasonable technical and organizational measures to keep personal data secure and to protect it against accidental loss or unlawful destruction, alteration, disclosure or access; and, must deal with the information only in accordance with Customer’s instructions, provided they are reasonable and lawful.

5. Enforcement

5.1 Investigation of Violations.

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

5.2 Actions.

BRINKSTER may 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 that potentially violates any laws. If BRINKSTER becomes aware that Buyer has possibly violated this Agreement, any related policies or guidelines, third party rights or laws, BRINKSTER may immediately take corrective action, including: (a) issuing warnings, (b) suspending or terminating the Service, (c) restricting or prohibiting any and all uses of content hosted on BRINKSTER’s systems, and (d) disabling or removing any hypertext links to third-party Web sites, any of Buyer’s content distributed or made available for distribution via the Services, or other content not supplied by BRINKSTER that, in BRINKSTER’s sole discretion, may violate or infringe any law or third-party rights or that otherwise exposes or potentially exposes BRINKSTER to civil or criminal liability or public ridicule. It is BRINKSTER’s policy to terminate repeat infringers. These rights of action, however, do not obligate BRINKSTER to monitor or exert editorial control over the information made available for distribution via the Services. If BRINKSTER takes corrective action because of a possible violation, BRINKSTER will not refund to Buyer any fees Buyer paid in advance of the corrective action.

5.3 Disclosure Rights.

To comply with applicable laws and lawful governmental requests, to protect BRINKSTER’s systems and customers, or to ensure the integrity and operation of BRINKSTER’s business and systems, BRINKSTER may access and disclose any information it considers necessary or appropriate, including, user profile information (i.e., name, e-mail address, etc.), IP addressing and traffic information, usage history, and content residing on BRINKSTER’s servers and systems. BRINKSTER may report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. To the extent any inconsistency exists between any terms of BRINKSTER’s On-line Privacy Statement and BRINKSTER’s right to disclose under this section, BRINKSTER’s right to disclose under this section will control.

6. Disclaimed Warranties

BRINKSTER exercises no control over, and accepts no responsibility for, the content of the information passing through BRINKSTER’s host computers, network hubs and points of presence, or the Internet. ALL SERVICES PERFORMED UNDER THIS AGREEMENT ARE PERFORMED “AS IS” AND WITHOUT WARRANTY AGAINST FAILURE OF PERFORMANCE INCLUDING, ANY FAILURE BECAUSE OF COMPUTER HARDWARE OR COMMUNICATION SYSTEMS, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, AND BRINKSTER’S APPLICABLE SERVICE LEVEL AGREEMENT.

7. Limitation and Exclusion of Liability

7.1 Limitations.

IN NO EVENT WILL BRINKSTER OR ITS SUPPLIERS HAVE ANY LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF INFORMATION DISTRIBUTED OR MADE AVAILABLE FOR DISTRIBUTION VIA THE SERVICES THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES AS A RESULT OF CUSTOMER’S NEGLIGENCE.

7.2 Interruption of Service.

BRINKSTER and its suppliers are not liable for any temporary delay, outages or interruptions of the Services. Further, BRINKSTER is not liable for any delay or failure to perform its obligations under this Agreement, where the delay or failure results from any act of God or other cause beyond its reasonable control (including, any mechanical, electronic, labor disputes, governmental actions, terrorist actions, communications or third-party supplier failure).

8. Indemnification.

Buyer releases and holds harmless, and agrees to indemnify, BRINKSTER and its affiliates and suppliers (and their respective employees, directors and representatives) against any and all claims, actions, proceedings, suits, liabilities, damages, settlements, penalties, fines, costs or expenses (including, reasonable attorneys’ fees and other litigation expenses) incurred by BRINKSTER or its suppliers, arising out of or relating to: (a) Buyer’s violation or breach of any term, condition, representation or warranty of this Agreement, or any applicable policy or guideline; (b) Buyer’s improper or illegal use the Services; or (c) Buyer’s violation, alleged violation, or misappropriation of any intellectual property right (including trademark, copyright, patent, trade secrets) or non-proprietary right of a third party (including defamation, libel, violation of privacy or publicity).

9. Miscellaneous Provisions.

9.1 Entire Agreement.

This Agreement, in conjunction with all policies and guidelines incorporated by reference, constitutes the entire agreement between Buyer and BRINKSTER with respect to the subject matter of the Agreement, and there are no representations, understandings or agreements that are not fully expressed in this Agreement and the related policies and guidelines.

9.2 No Fiduciary Relationship; No Third-Party Beneficiaries.

BRINKSTER is not the agent, fiduciary, trustee or other representative of Buyer. Except for the rights of BRINKSTER’s suppliers under sections 6 and 7, nothing expressed or mentioned in or implied from this Agreement is intended or will be construed to give to any person (other than the parties to this Agreement) any legal or equitable right, remedy or claim under or in respect to this Agreement. This Agreement and all of its representations, warranties, covenants, conditions and provisions are intended to be and are for the sole and exclusive benefit of the parties to this Agreement.

9.3 Amendments.

Except as expressly provided in this Agreement, no amendment, change, waiver, or discharge of this Agreement is valid unless in writing and signed by the parties.

9.4 Identification.

BRINKSTER may, free of any obligation to pay compensation, use Buyer’s name and identify Buyer as a BRINKSTER client, in advertising, publicity, or similar materials distributed or displayed to prospective clients.

9.5 Choice of Law and Forum.

THIS AGREEMENT IS GOVERNED BY THE LAWS OF THE UNITED STATES AND THE STATE OF ARIZONA, 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 PHOENIX, ARIZONA, AND BUYER IRREVOCABLY CONSENTS TO THE JURISDICTION OF THESE COURTS.

9.6 Personnel.

The Buyer and BRINKSTER are responsible for the supervision, direction, control, and compensation of our respective personnel. BRINKSTER reserves the right to determine the assignment of its personnel. BRINKSTER may subcontract a Service, or any part of it, to subcontractors selected by BRINKSTER.

9.7 Compliance With Laws.

Brinkster and Buyer will comply with all applicable laws and regulations and will indemnify and save each other harmless from the other’s failure to so comply. Each party will not have to perform any obligations set forth in this Agreement if the performance would violate any present or future law, regulation or policy of any applicable government.

9.8 Non-Assignment.

Buyer may not assign this Agreement or any right or obligation under this Agreement, by operation of law or otherwise, without BRINKSTER’s prior written consent. BRINKSTER may assign its rights and obligations under this Agreement, and may utilize affiliates and agents in performing its duties and exercising its rights, without Buyer’s consent. This Agreement is binding on, inures to the benefit of, and is enforceable against the parties and their respective successors and assigns.

9.9 No Waiver.

BRINKSTER’s failure to enforce the strict performance of any provision of this Agreement does not constitute a waiver of BRINKSTER’s right to subsequently enforce the provision or any other provisions of this Agreement.

9.10 Severability.

If any term or provision of this Agreement is deemed invalid, void or unenforceable either in its entirety or in a particular application, the remainder of this Agreement, if applicable, will remain in full force and effect and, if the subject term or provision is deemed to be invalid, void or unenforceable only with respect to a particular application, the term or provision will remain in full force and effect with respect to all other applications.

9.11 Headings.

The section headings used in this Agreement are for reference and convenience only and will not enter into the interpretation of the Agreement.

9.12 Notices.

All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed given if personally delivered or mailed, certified mail, return receipt requested, or sent by for next-business-day delivery by a nationally recognized overnight carrier to the following addresses:

If to BRINKSTER, to:

If to Buyer, to:

9.13 Survival.

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