Hosting Terms

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1. 1. SCOPE

A. If Customer has signed a Master Services Agreement (MSA) with Shero, this Agreement is governed by that MSA. All terms in that MSA will take precedence over any conflicting terms of this Agreement.

2. 2. DEFINITIONS

A. “Plans” means proposals for offering various services to be provided by Shero, as listed online at: “Plans” does not include the use of any trademarks owned by Shero or its hosting partners.

B. “Customer” means an end user who is utilizing services provided by Shero.

3. 3. PRICES

A. All prices for Plans provided by Shero to Customer are U.S. dollars.

B. Customer shall be responsible for paying all taxes of any nature which become due with regard to Shero services, except for taxes on Shero’ income, irrespective of which party may be responsible for reporting or collecting such taxes.

4. 4. STATEMENT OF WORK (SOW) ACCEPTANCE, PAYMENT

A. All SOW are subject to acceptance by Shero. A SOW will be deemed accepted by Shero when written confirmation of the order is sent to Customer. Shero may refuse to accept any order, or delay acceptance pending fulfillment of conditions Shero may choose to impose. Such refusal or such conditions may not be unreasonable, however, and Shero agrees to provide Customer with reasonable notice via Email or fax of any intent to delay or decline the acceptance of any order.

B. Payment and Terms: Payment shall be made in US dollars to Shero using the method designated by Shero, or as may otherwise be agreed in writing by the parties. Payments are due upon account activation and future renewal. If due to bank charges, transfer fees, or the like, Shero should receive less than its invoice amount, Shero will re-invoice Customer for the shortfall. Customer agrees to be bound by Shero’ published Billing Policies and terms. In the event that any amount remains unpaid fifteen (30) days after presentation of invoice, Shero may discontinue, withhold, or suspend services to Customer and/or its customer(s) to whom such unpaid amounts relate.

5. DOMAIN REGISTRATION TERMS AND CONDITIONS

Shero will acquire, on request, an Internet Domain Name on behalf of the Customer. In such case the Customer hereby waives any and all claims which it may have against Shero for any loss, damage, claim or expense arising out of, or in relation to, the registration of such Domain Name in any on-line or off-line network directories, membership lists or registration lists, or the release of the Domain Name from such directories or lists following the termination of services by Shero for any reason. Any costs of Shero in obtaining or maintaining a domain name for Customer or its customers shall be immediately reimbursed to Shero upon invoice from Shero to Customer.

A. ICANN Guidelines. Additionally, Customer acknowledges that ICANN may establish guidelines, limits and/or requirements that relate to the amount and type of information that our hosting and registrar partners may or must make available to the public or to private entities, and the manner in which such information is made available. Customer hereby consents to any and all such disclosures and use of, and guidelines, limits and restrictions on disclosure or use of, information provided by Customer in connection with the registration of a domain name (including any updates to such information), whether during or after the term of Customer’s registration of the domain name.

B. Third Party Data. In the event that, in registering the domain name, Customer is providing information about a third party, Customer hereby represents that Customer has (1) provided notice to that third party of the disclosure and use of the party’s information as set forth in this Agreement, and (2) that Customer has obtained that third party’s express consent to the disclosure and use of that party’s information as set forth in this Agreement.

C. Accuracy of Data. Customer acknowledges that willfully providing inaccurate information or willfully failing to update information promptly will constitute a material breach of this Agreement and will be sufficient basis for cancellation of Customer’s domain name registration. (In addition, under certain federal laws, such provision of inaccurate or false information is one factor in determining whether Customer may have violated the trademark rights of another party in registering a domain name confusingly similar to such party’s trademark.) Customer is responsible for notifying Shero in writing of changes in its contact information. In addition, Customer agrees that Customer’s failure to respond for over fifteen (15) calendar days to inquiries by Shero concerning the accuracy of contact details associated with Customer’s registration shall constitute a material breach of this Agreement and will be sufficient basis for cancellation of Customer’s domain name registration.

D. If Customer Has Registered a Domain Name Through A Third Party. If Customer has registered a .com, .net, or .org domain name through a third party, or Customer asked Shero to register the domain name for Customer, Customer is bound by the domain registration policies of that registrar. For example, domains registered with Network Solutions, Inc. (“NSI”) are subject to the agreement Customer entered into with NSI. By applying for the domain name and through the use or continued use of the domain name, the applicant agrees to be bound by the terms of NSI’s domain name policy (the “NSI Policy”) which is available at: http://www.networksolutions.com/legal/static-service-agreement.jsp .

E. Domain Name Transfers. If Customer has requested that the domain name registrar of record for Customer’s domain name(s) (as identified by Customer during the registration process) be transferred to Shero and its hosting or registrar partners, the following terms shall apply:

In making the transfer request, Customer represents and warrants that:

• Customer is the rightful holder of the registration for the domain name(s) that Customer seeks to transfer.
• Customer is not in default with respect to any obligations that Customer owes to the current registrar of record.
• Customer is not the subject of any pending bankruptcy proceeding, nor is Customer a party to any dispute concerning the use or registration of the domain name(s).
• The domain name(s) are not currently the subject of any dispute or collection effort, including any attachment, levy, lien, garnishment, escrow or other proceedings.
• Customer is authorized to request the transfer and to enter into this Agreement.
• More than 60 days have passed since the domain name(s) was registered, transferred to a new registrar, or renewed. CUSTOMER MAY NOT TRANSFER A DOMAIN NAME TO A NEW REGISTRAR WITHIN 60 DAYS OF INITIAL REGISTRATION, OR ANY SUBSEQUENT TRANSFER OR RENEWAL.
  

Customer agrees that neither Shero nor its hosting or registrar providers will have any responsibility for any obligations that Customer may owe to the current registrar of record for the domain name(s) Customer seeks to transfer, and that Customer will be responsible, pursuant to the indemnification provision herein, for any costs that Shero may incur in resolving any claims brought by any third party (including the current registrar of record) relating to this transfer. Customer will not be entitled to a refund or credit for any amounts that Customer may have paid to the current registrar of record. Upon the completion of the transfer process, however, the term of Customer’s registration will be extended by the period for which Customer has paid Shero. Customer agrees that Shero may charge Customer an additional maintenance fee in order to maintain Customer’s domain name for any term carried over from the current registrar of record. Upon receipt of a request to transfer a domain name from another registrar (losing registrar) to Shero, Shero requires validation of the request from the Administrative Contact on record at the time of the transfer request. Customer authorizes Shero to take all actions reasonably necessary to transfer the domain name(s), including contacting and updating Customer’s registration information with the current registrar of record and the registry. Except as noted above, Shero will treat Customer’s transfer request as an initial domain name registration and will provide all subsequent domain name services in accordance with the terms and conditions herein. The term “register” or “registration,” as used in this Agreement, shall be read to include the transfer of a domain name registration from Customer’s current registrar of record to Shero or its registrar partners.

F. Third-Party Proprietary Rights: Customer shall be solely responsible for ensuring, and hereby represents and warrants to Shero, that Customer’s domain name does not infringe upon any trademark, trade names, service mark or other proprietary rights owned by a third party. Customer agrees to be bound by the terms of the dispute policy adopted by the domain name registry, and related agreements that Customer will be asked to review and indicate Customer’s acceptance of during the domain name registration process. In the case of gTLDS (global Top Level Domains, including but not limited to .com, .net,.org, .biz, and .info), the dispute policy is the ICANN Domain Name Dispute Policy, which is posted at http://www.icann.org/en/help/dndr .

HOSTING TERMS OF SERVICE

A. Server Set-Up and Updating: Shero will initially configure the web server and the hosting account for use. After the hosting account is configured, Customer will be solely responsible for all account content management.

B. Maintenance Services: Shero will perform maintenance services as Shero determines reasonably necessary to maintain the continuous operation of the hosting account. Customer acknowledges such maintenance may require Web server and hosting account downtime, and such downtime will not count against any uptime guarantees. Shero will attempt to provide prior notice of maintenance downtime except when circumstances beyond Shero’s control limit Shero’s ability to do so.

C. Account Usage: Customer shall not use (i) excessive amounts of CPU processing on Customer’s Web server, or (ii) bandwidth or disk usage in excess of the monthly amount ordered. Customer acknowledges any violation of this policy may result in corrective action by Shero, in its sole discretion, including assessment of additional charges or disconnection or discontinuance of any and all Services to Customer. In the event that Shero decides to take corrective action, Customer shall not be entitled to a refund of any fees paid in advance prior to such corrective action.

D. Customer shall be solely responsible for (a) the development, operation, and maintenance of Customer’s Web site and products and all content and materials appearing within the Web site or related to Customer’s products, including without limitation (i) the accuracy and appropriateness of content and materials appearing within the Web site or related to Customer’s products, (ii) ensuring that the content and materials appearing within the Web site or related to Customer’s products do not violate or infringe upon the rights of any third party,
(iii) ensuring that the content and materials appearing within the Web site or related to Customer’s products are not libelous or otherwise illegal; (b) the final calculation and application of shipping and sales tax; (c) accepting, processing, and filling any customer orders, and for handling any customer inquiries or complaints arising therefrom; and (d) the security of any customer credit card numbers and related customer information Customer may access as a result of conducting electronic commerce transactions through the Web server software.

E. IP Address Ownership: Shero and/or its service providers shall maintain and control ownership of all IP numbers and addresses that may be assigned to Customer by Shero, and Shero reserves in its sole discretion, the right to change or remove any and all such IP numbers
and addresses.

F. Caching: Customer grants Shero a license to cache the entirety of Customer’s Web site (including content provided by third parties) hosted by Shero, and agrees such caching is not an infringement of any of Customer’s intellectual property rights or any third party’s intellectual property rights.

RULES AND REGULATIONS

Shero may impose reasonable rules and regulations regarding the use of its services from time to time. Customer shall impose such rules and regulations on its employees and users to the extent necessary to ensure compliance.

LIMITATION OF Shero’ OBLIGATIONS AND LIABILITY

A. Shero will utilize its best efforts to maintain acceptable performance of contracted services, but Shero makes absolutely no warranties whatsoever, express or implied, including warranty of merchantability or fitness for a particular purpose. Shero cannot guarantee continuous service, service at any particular time, or integrity of data stored or transmitted via its system or via the Internet. Shero will not be liable for the inadvertent disclosure of, or corruption or erasure of, data transmitted or received or stored on its system. Shero shall not be liable to Customer or any of its customers for any claims or damages which may be suffered by Customer or its customers, including, but not limited to, losses or damages of any and every nature, resulting from the loss of data, inability to access the Internet, or inability to transmit or receive information, caused by, or resulting from, delays, non-deliveries, or service interruptions whether or not caused by the fault or negligence of Shero.

B. Shero may discontinue servicing any Plan, or may require fulfillment of conditions Shero may choose to impose as a prerequisite or continuing to service any Plan. Such discontinuation or requirement may not be unreasonable, however, and Shero agrees to provide Customer with reasonable notice via Email or fax of any such intent to discontinue or impose conditions.

C. Services provided by Shero to Customer shall be deemed accepted for all purposes fifteen days after activation or renewal for such services if no written claim or objection regarding such services has been received by Shero within the 15-day period. No claim related to such accepted services shall be raised.

D. Shero liability to Customer, and any end user of any Plan or other Shero services is limited to the amount paid to and received by Shero for services not accepted. In no event shall Shero be liable to Customer, or any end user or any other entity for any special, consequential, or other damages, however, caused, whether for breach of contract, negligence or otherwise, even if Shero has been advised of the possibility of such damage.

E. Customer will take all necessary measures to preclude Shero from being made a party to any lawsuit or claim regarding Shero services provided to any Customer or end user. Customer hereby agrees to indemnify and hold harmless Shero from any and all claims of whatever

nature brought by any of Customer’s users against Shero in excess of the remedy set forth in paragraph 7(D).

F. Where data backup and restoration services are a part of Shero’ provisioning of a service, such services are not intended to be a comprehensive disaster recovery solution, and Shero or its hosting partners will not be liable for data loss, or for damage to servers or other equipment.

DISPUTES

The parties shall attempt to resolve all disputes arising out of this agreement in a spirit of cooperation without formal proceedings. Any dispute which cannot be so resolved (other than the collection of money due on unpaid invoices) and other than the injunctive relief referred to in paragraph 10 shall be subject to arbitration upon written demand of either party. Arbitration shall take place in Poughkeepsie, New York or at another location if the parties so agree. The arbitration shall take place before an arbitration panel chosen as follows: The parties shall each choose an arbitrator, and the two arbitrators shall choose a third arbitrator and determine the third arbitrator’s compensation. Each party shall have one veto over the choice of the third arbitrator. The three arbitrators shall schedule an informal proceeding, hear the arguments, and decide the matter by secret majority vote. Unless the arbitrators decide otherwise, each party shall pay the costs of its own arbitrator, and shall pay half of the other costs of the arbitration proceeding. Each party shall have the right to have the proceedings transcribed. The arbitrators shall not have the authority to award punitive damages or any other form of relief not contemplated in the contract. The majority of arbitrators shall render a written opinion setting forth the basis on which they arrived at the decision regarding each issue submitted to arbitration; the dissenting arbitrator, if any, shall not issue a dissenting opinion. Regarding each issue submitted to arbitration, the decision shall be final and binding only to the extent it is accompanied by a written explanation of the basis upon which it was arrived at. Judgment upon the award, if any, rendered by the arbitrators may be entered in any court having jurisdiction thereof.

Should any legal action permissible under this agreement be instituted to enforce the terms and conditions of this Agreement, in particular, the right to collect money due on unpaid invoices, the prevailing party shall be entitled to recover reasonable attorney’s fees and expenses incurred at both the trial and appellate levels.

TERM, TERMINATION:

This agreement shall run in accordance with the term of the initial STATEMENT OF WORK (SOW). It shall be automatically renewed on a regular basis in accordance with the term of the initial order or subsequent change to that term unless terminated in one of the following ways:

A. By customer, by notifying Shero in writing twenty (30) days prior to renewal of this agreement.

B. By Shero, upon thirty (30) days’ written notice, if Customer breaches any material and substantial provision of this agreement and has not cured by the end of the 30 days.

C. By Shero, upon sixty (60) days’ written notice, if:

1. Shero provides Customer with written notice of the specific reasons for its belief in this regard, and

2. 2. Customer has not cured by the end of the 60 days.

D. By Shero, immediately upon giving written notice to Customer, in the event that:

1. Any bank draft or check delivered by Customer to Shero in payment for Products is returned unpaid and Customer fails to remedy such non-payment within five business days;

2. Customer becomes more than sixty (60) days in arrears in payment of its account with Shero;

3. There are instituted bankruptcy or insolvency proceedings against Customer, which are not vacated within sixty (60) days from the date of filing;

4. Customer institutes voluntary bankruptcy or insolvency proceedings, or otherwise admits insolvency; or

5. Customer makes an assignment of all or part of its assets for the benefit of creditors.

E. By Shero immediately, if Customer attempts to assign all or any part of this Agreement without Shero’ prior written approval;

F. By Shero immediately, if Customer fails to inform Shero in writing immediately on the happening of any event specified in this section;

G. By Customer, immediately upon giving written notice to Shero, if

1. There are instituted bankruptcy or insolvency proceedings against Shero, which are not vacated within sixty (60) days from the date of filing;

2. Shero institutes voluntary bankruptcy or insolvency proceedings, or otherwise admits insolvency;

3. Shero makes an assignment of all or part of its assets for the benefit of creditors; or

4. Shero fails to inform Customer in writing immediately on the happening of any event specified in this section. The provisions of paragraphs 9, 12, 13, and 14 survive any termination of this agreement.

11. NONASSIGNABILITY

Customer’s rights and obligations under this agreement may not be transferred or assigned directly or indirectly without the prior written consent of Shero, which consent shall not be unreasonably refused.

12. PARTIAL INVALIDITY

If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions shall nevertheless remain in full force and effect. Shero and Customer agree to renegotiate in good faith any term held invalid and to be bound by mutually agreed on substitute provision.

13. APPLICABLE LAW, JURISDICTIONAL MATTERS

This agreement takes effect when accepted by Shero in New York. It is to be governed by and construed under the laws of the State of New Yo and the United States of America. The federal and state courts of the State of New York shall have exclusive jurisdiction to adjudicate any non-arbitrable dispute arising out of this agreement. Customer hereby expressly consents to (1) the jurisdiction of the courts of the State of New York and (2) service of process being effective upon it by registered mail sent to the address set forth at the beginning of this document, as may be changed from time to time by written notice actually received by Shero. To the extent permissible by the law of Customer’s jurisdiction, Customer waives any requirement that service of process or of any documents be made upon it pursuant to the provisions of the Hague Convention.

14. NOTICES

Except with respect to service of process as set forth in paragraph 10, all notices may be sent by email, fax, or express mail to the email address, fax number, or address most recently provided and will be effective upon transmission. Evidence of successful transmission shall be retained.

15. ENTIRE AGREEMENT; MODIFICATIONS

This agreement sets forth the entire agreement and understanding between the parties and merges all prior discussion between them. Shero may make changes to this agreement upon thirty (30) days’ written notice to Customer, advising of the change and the effective date thereof. Utilization of Shero services by Customer and/or its Customers following the effective date of such change shall constitute acceptance by Customer of such change(s). Otherwise, this agreement may not be modified except by the written consent of both parties.

16. ACCEPTANCE OF SERVICES

ACCEPTANCE OF THIS AGREEMENT BY Shero MAY BE SUBJECT, IN ITS’S ABSOLUTE DISCRETION, TO SATISFACTORY COMPLETION OF A CREDIT CHECK AND CONTINUED CREDIT WORTHINESS OF CUSTOMER. ACTIVATION OF SERVICE SHALL INDICATE ITS ACCEPTANCE OF THIS AGREEMENT. USE OF THE SERVICES CONSTITUTES ACCEPTANCE OF THIS AGREEMENT. CUSTOMER REPRESENTS AND WARRANTS THAT CUSTOMER HAS FULL AUTHORITY AND RIGHT TO ENTER INTO THIS AGREEMENT. CUSTOMER FURTHER REPRESENTS AND WARRANTS THAT CUSTOMER IS AT LEAST 18 YEARS OF AGE, AND THAT CUSTOMER IS NOT LOCATED IN A COUNTRY SUBJECT TO U.S. EMBARGOES, OR LISTED ON THE U.S. TREASURY DEPARTMENT’S LIST OF SPECIALLY DESIGNATED NATIONALS, OR LISTED ON U.S. COMMERCE DEPARTMENT’S DENIED PERSONS LIST OR ENTITIES LIST.