REDPLAID® Managed Hosting - Terms Of Service - Revised November 30, 2009

1. Defined Terms. As used in this Agreement, the following terms have the meaning ascribed to them below:

"AUP" shall have the meaning ascribed to that term in Section 4.6 below.

"Business Day" means Monday through Friday, 8:00 a.m. to 5:00 p.m., central U.S. time, excluding any day that banks in the United States are required or permitted to be closed.

"Customer Affiliate" means any person or entity that now or hereafter, directly or indirectly controls, is controlled by, or is under common control with, Customer. The term "control", and its variations, for purposes of this definition, means the possession, direct or indirect, of the power to direct or cause the direction of the management of the subject entity, whether through the ownership of voting securities, by contract or otherwise.

"Managed Hosting Service" means the provision of any services described in any applicable Statements of Work, Order Forms and Service Level Agreements.

"Order Form" means any one or more Order Forms that incorporate this Agreement by reference. For the avoidance of doubt, there may not be any Order Forms.

"REDPLAID Competitor" means any person or entity that directly or indirectly, provides, or is in the business of providing, any service that competes with, or may compete with, with the Managed Hosting Services provided by REDPLAID.

"REDPLAID's Designated Trade Secrets" means (a) REDPLAID's unpublished margin and pricing data, (b) REDPLAID's vendor pricing, terms and agreements, (c) REDPLAID's audit and security reports including, without limitation all content of such reports and the "look and feel" of such reports, (d) REDPLAID's server and network configuration designs, and (e) without limiting the generality of the foregoing, REDPLAID's Managed Hosting Tools (as defined in Section 10.2 below).

"REDPLAID's Trade Secrets" means, collectively, (a) REDPLAID's Designated Trade Secrets, and (b) all information that constitutes a trade secret under applicable law.

"Service Commencement Date" means the date REDPLAID contacts Customer and provides access codes and passwords for use in connection with the Managed Hosting Service.

"Service Level Agreement" means any one or more REDPLAID Service Level Agreements that are incorporated by reference in, as applicable, the Statement of Work or Order Form, as each may be amended from time to time by written agreement of the parties.

"Statement of Work" means any one or more REDPLAID Statements of Work that incorporate this Agreement by reference. For the avoidance of doubt, there may not be any Statements of Work.

"Service" or "Services" means the Managed Hosting Service, any Additional Services (as defined in Section 2.2 below), and any other services provided by REDPLAID to Customer hereunder.

2. Services.

2.1 Managed Hosting Services. Subject to the terms and conditions of this Agreement, REDPLAID agrees to provide the Managed Hosting Service to Customer.

2.2 Additional Services. Subject to the terms and conditions of this Agreement, REDPLAID may from time to time perform certain system administration services, customization of the Managed Hosting Service, services described in the AUP, data storage, virtual private networks, excess data transfer, and/or any other professional or technical services (collectively the "Additional Services"), in each instance on an hourly fee basis. Additional Services will be performed upon Customer's request but only if agreed to by REDPLAID. In addition, REDPLAID may perform Additional Services without Customer's request or consent if such Additional Services are necessitated by a breach of this Agreement (including, without limitation, the AUP) by Customer.

2.3 New Domain Accounts. If REDPLAID is engaged by Customer to set up and host any new web hosting accounts involving new Internet domain names, then REDPLAID will use reasonable efforts to set up and enter any new web hosting accounts involving new Internet domain names into REDPLAID'S DNS servers within 24 hours unless there are unforeseen complications. If the new domain is registered by the account holder, there will be no handling fee. If the domain is registered by REDPLAID on behalf of the account holder, REDPLAID will perform these services as billable Systems Administration hours at REDPLAID's current rate for Systems Administration services.

2.4 Transfer of Domains. REDPLAID may require additional time to be set up a Customer account if REDPLAID is engaged by Customer to transfer an Internet domain name from another provider to REDPLAID. Due to the unpredictable nature of the transfer process, no guarantees are made regarding the amount of time a specific transfer may take. If the transfer of the domain is done by REDPLAID on behalf of the account holder, REDPLAID will perform these services as billable Systems Administration hours at REDPLAID's current rate for Systems Administration services. If the Customer cancels service during the transfer period for any reason, all fees are considered earned

2.5 Contingencies. All of REDPLAID's obligations under this Agreement (including, without limitation, this Section 2) are contingent upon (a) Customer's satisfaction of REDPLAID's credit approval requirements, (b) REDPLAID's verification of the information provided by Customer for the purpose of establishing the applicable Service, and (c) Customer's strict compliance with all terms and conditions of this Agreement.

2.6 Denial and Suspension of Service. In furtherance of Section 2.5 above but without limit in the generality thereof, REDPLAID reserves the right to refuse service to anyone at any time for any reason. Customer agrees that REDPLAID may suspend Services to Customer without notice and without liability if: (a) REDPLAID reasonably believes that the Services are being used in violation of the AUP, (b) Customer fails to cooperate with any reasonable REDPLAID investigation of any suspected violation of the AUP, (c) there is a denial of service attack on Customer's servers or other event for which REDPLAID reasonably believes that the suspension of Services is necessary to protect its network or its other customers, and/or (d) as requested by a law enforcement or government agency. Information on REDPLAID's servers will be unavailable during a suspension of Services.

3. Support Policies.

3.1 Technical Support. REDPLAID agrees to provide 24/7 technical support to Customer related to problems with the Services purchased by Customer. When Customer believes that some component of their Services is experiencing a problem, Customer agrees to complete an online service ticket as a first step prior to contacting REDPLAID Technical Support whenever possible.

3.2 System Administration. When Customer requires a change or modification be made to Customer's Services, Customer agrees to complete an online service ticket as a first step whenever possible. All System Administration services shall be charged against Customer's pre-purchased block of System Administration hours, if any, or Customer agrees to pay REDPLAID for System Administration services at REDPLAID's then current rates in 15-minute increments. Any pre-purchased Systems Administration services that go unused at the end of each month will lapse and do not roll over to the following month.

3.3 Support Not Provided. Customer agrees that REDPLAID does not offer 24/7 training nor end-user support for any Services, nor 24/7 support for any application specific issues such as application programming, application performance tuning, html or any other such issues, unless specifically contracted for by Customer and agreed to by REDPLAID or its parent company, Connectria Corporation, in writing and in advance. Customer also agrees that REDPLAID does not provide technical support for Customer's clients.

4. Customer's Obligations.

4.1 Reasonable Security Precautions and Acceptable Actions. Without limiting any other disclaimers or limitations of liability set forth in this Agreement, REDPLAID shall have no liability for any damages incurred by Customer due to a breach of security. Accordingly, Customer agrees to (a) use reasonable security precautions in connection with its use of the Services, and (b) if Customer resells REDPLAID's services, require its customers and end users to use reasonable security precautions. In addition, Customer agrees not to take any action or install any software which may preclude or impair REDPLAID's ability to access or administer its servers.

4.2 Customer Data Back Up. Depending on the specific Services purchased by Customer, REDPLAID may provide either partial or full Data backup services for Customer, or Customer may choose not to have REDPLAID provide any Data backup services, on any or all of REDPLAID's servers used by Customer. As such, Customer acknowledges that any servers can and do fail and the risk of Data loss is always present when any Data is stored on a computer system of any kind, even with the security and reliability protections that REDPLAID provides. Customer also acknowledges that Data backups in general do not always allow for restoration of Data due to the many inherent limitations when performing Data backups, and that REDPLAID's Data backup services may not always allow Customer to restore any or all of their Data in the event of a failure of any kind. Without limiting any other disclaimers or limitations of liability set forth in this Agreement, Customer agrees that REDPLAID shall have no liability for loss of any Data stored on REDPLAID's server's by Customer or otherwise provided by REDPLAID to Customer, even if REDPLAID is providing any type of Data Backup services to Customer. For purposes of this section, "Data" shall include any software, content, and any other information stored on REDPLAID's servers by Customer or otherwise provided to REDPLAID by Customer.

4.3 Compliance With Applicable Laws. Customer shall be responsible for compliance with all applicable laws and governmental regulations affecting its use of the Services, and REDPLAID shall not have any responsibility relating to Customer therefore, including, without limitation, any responsibility to advise Customer of Customer's responsibilities in complying with any laws or governmental regulations affecting its use of the Services. If Customer resells REDPLAID's Service, Customer shall require its customers and end users to comply with such laws and regulations. REDPLAID shall be responsible for compliance with all applicable laws and governmental regulations affecting its provision of the Services.

4.4 Customer's Applications & Website. For the avoidance of doubt, Customer acknowledges and agrees that (a) Customer's application software and website may have certain software or hardware dependencies in order to run properly in a managed hosting environment using REDPLAID's Service(s), (b) Customer is solely responsible for ensuring that Customer's applications and/or website will function properly on REDPLAID's Service(s) using the hardware and software supported by REDPLAID prior to contracting with REDPLAID, and (c) REDPLAID has no obligation whatsoever to assist or ensure that Customer's applications or website functions properly on REDPLAID's Service(s). Accordingly, Customer shall be solely responsible for any cost or effort to change or modify Customer's applications or website to function properly on the REDPLAID Service(s), and Customer's inability to have its applications or website function properly using the REDPLAID Service(s) shall not relieve Customer of any of its obligations under this Agreement.

4.5 Unauthorized Use of Service. While REDPLAID may provide security services to Customer, Customer is responsible for the security of the Services provided pursuant to this Agreement, and REDPLAID agrees only to perform the specific security services described in the Order Form or Statement of Work, and/or other portion of the Agreement. Customer shall be responsible for any unauthorized use of the Services by any person, and shall pay all fees incurred for its account by any person using the Services, unless such unauthorized use was because of a security breach that occurred when a component of REDPLAID'S Security Environment that Customer had contracted for was unavailable which would have, under normal operating practices, protected Customer from said security breach.

4.6 Acceptable Use Policy (AUP). Customer acknowledges that it has read REDPLAID's Acceptable Use Policy located at http://www.redplaid.com/acceptable_use.html, and Customer agrees to comply with such policy and any changes thereto which are made in accordance with the further provisions of this Section 4.6 ("Acceptable Use Policy" or "AUP"). REDPLAID may change such policy by posting the revised policy on its web site or by giving Customer notice thereof. Any such change shall be effective on the earlier of the date the new policy is posted or on the date REDPLAID gives Customer notice thereof. If Customer resells REDPLAID's Service, Customer shall require its customers and end users to comply with such AUP. Furthermore, Customer agrees to cooperate with REDPLAID's reasonable investigation of any suspected violation of the AUP by Customer or any of its customer or end users. If, however, any amendment to the AUP would materially and adversely affect Customer, Customer agrees to provide REDPLAID with a written notice describing its objection to the amendment in reasonable detail within five (5) Business Days of the effective date of the amendment. In the event REDPLAID does not agree to waive the amendment as to Customer within five (5) Business Days of Customer's notice, then Customer may terminate the Agreement without liability as provided in Section 6.2 (c) (Termination by Customer).

4.7 Software. Customer agrees not to remove, modify or obscure any copyright, trademark or other proprietary rights notices that appears on any software provided by REDPLAID. Customer may not reverse engineer, decompile, or disassemble any REDPLAID provided software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation, or is permitted by the terms of any "open source" license that governs the use of the software. If the applicable Statement of Work or Order Form indicates that REDPLAID uses Microsoft software to provide the Services, Customer agrees to the Customer License Terms for Microsoft software published by Microsoft Corporation.

4.8 Third Party Products. As a convenience to Customer, REDPLAID may from time to time arrange for Customer's purchase or license of third party software, services, and other products not included as part of the Service, and/or may provide support to Customer in relation to those products. Customer's use of third party software, services, and other products is governed by the terms of any license or other agreement between Customer and the third party.

4.9 Distributed Denial Of Service (DDoS) Attacks. A DDoS attack occurs when a number of servers (that have typically been "hacked" or compromised located throughout the Internet) launch an attack against a website or a server, and send a flood of traffic to that website or server. A DDoS attack can significantly impact the performance of the network under attack, and can consume significant amounts of Internet bandwidth. In order to protect REDPLAID and its customers from DDoS attacks, REDPLAID offers monthly ongoing DDoS protection to its customers within our Managed Services offerings, as well as One-Time DDoS protection for customers that have not signed up for a monthly service but find themselves under attack. If a Customer contracts for DDoS protection from REDPLAID, Customer's traffic will be scrubbed and good traffic (i.e., non-attacked traffic) will be sent to Customer's servers, although Customer agrees and accepts that REDPLAID shall be allowed to place a limit on the amount of Internet traffic to be accepted as part of an attack on Customer's server(s). This limit may vary based upon the load on REDPLAID's network at any given time, and will be determined by REDPLAID in its sole discretion. In the event the total traffic (including attacking and non-attacking traffic) to Customer's server(s) goes above the limit set by REDPLAID such that REDPLAID believes a continued attack may cause a significant impact to REDPLAID's network or other customers, Customer accepts that Customer's Internet traffic going to the attacked server(s) will be null routed (blocked) until the attack drops to a level deemed to be acceptable by REDPLAID. For those REDPLAID customers that do not sign up for either ongoing Monthly DDoS protection or One-Time DDoS protection and find themselves under a DDoS attack, those Customers' Internet traffic will null routed (blocked) on the server(s) being attacked. In addition, Customer agrees that they will be responsible for any monthly Internet bandwidth usage charges or monthly data transfer charges above Customers' contracted amounts during such an attack, as calculated by REDPLAID using REDPLAID's standard monthly data transfer calculation methods and its current rates for additional data transfer.

4.10 Data Encryption. In the event Customer stores any Protected Health Information (PHI) as defined by the United States Department of Health and Human Services (DHHS") pursuant to the Health Insurance Portability and Accountability Act of 1996 (HIPAA"), Customer agrees to the following: (a) Customer shall only store said data in an encrypted format on REDPLAID's server(s); (b) while Customer may request assistance from REDPLAID to setup encryption for its PHI data to be stored on REDPLAID's servers, Customer agrees that Customer is solely responsible to ensure that said PHI data is encrypted properly at all times; and (c) Customer shall not disclose to REDPLAID any encryption key(s) necessary to decrypt such data nor provide access to REDPLAID to any application(s) residing on the REDPLAID server(s) which stores PHI. Notwithstanding any other provision of this Agreement, Customer agrees that in the event Customer fails to encrypt any PHI data as provided herein and such unencrypted data is accessed by an unauthorized party while being stored on REDPLAID servers subjecting REDPLAID to compliance with any regulations and/or laws, Customer shall be solely responsible for all costs associated with compliance with such regulations and/or laws and shall indemnify REDPLAID for any and all suits, claims, actions, causes of action, liabilities, losses, damages, costs and expenses (including reasonable attorneys' fees and other expenses) associated with or arising out of such disclosure to the extent caused by the Customer's failure to encrypt such data. The provisions of this paragraph only apply to any Customer that is storing PHI on REDPLAID servers that is subject to HIPAA Compliance.

4.11 Security Agreement and Financing Statements. To secure the payment of all obligations, indebtedness and liabilities of Customer to REDPLAID and the performance of all covenants, conditions and agreements of Customer under this Agreement, Customer hereby grants to REDPLAID a security interest in and to all assets of Customer, including without limitation, all accounts, accounts receivable, contract rights, chattel paper, general intangibles, instruments, inventory, goods, equipment, furniture, fixtures, payment intangibles, supporting obligations, letter of credit rights and commercial tort claims, now owned or existing and hereafter acquired or arising, and all cash and non-cash proceeds thereof. Customer hereby authorizes REDPLAID to file any and all financing statements of all types, including without limitation, initial financing statements, continuation financing statements and amendment financing statements, in the name of Customer as Debtor, to perfect and/or continue the perfection of the security interest of REDPLAID in the collateral covered hereby and/or amend any or all financing statements filed with any governmental authority or agency pertaining to the security interest of REDPLAID in said collateral.

5. Fees.

5.1 Managed Hosting Services. Customer agrees to pay to REDPLAID the ongoing monthly fees and one-time set up fees due under each applicable Statement of Work and Order Form.

5.2 Additional Services. Customer agrees to pay REDPLAID any fees due for Additional Services, reinstatement of service, switching and upgrade fees and other recurring and non-recurring fees at, as applicable, REDPLAID's standard hourly rates or fixed fees in effect at the time the applicable service(s) is performed.

5.3 Other Fees. Customer acknowledges that it is responsible for excess data transfer fees that may result from a denial of service or other attack on its REDPLAID servers.

5.4 Invoicing and Payment. Unless otherwise stated in writing from REDPLAID, Customer agrees to be billed monthly via credit card for all fees and expenses, and REDPLAID shall provide Customer with a monthly invoice for Customer's fees and expenses incurred each month. REDPLAID's first invoice shall include set up fees and a prorated portion of the monthly recurring fee from the Service Commencement Date to the last day of the calendar month. REDPLAID requires payment in full of the first month's fees and all setup fees before beginning any Service. Following the Service Commencement Date, monthly recurring fees shall be charged to Customer's credit card and invoiced in advance of each month, approximately 3-7 business days prior to the beginning of the each month, and said charges are due upon receipt. Invoices for Additional Services, reinstatement of service, switching and upgrade fees and other recurring and non-recurring fees, if any, are due upon receipt and shall be invoiced and charged to Customer's credit card immediately following the month they were incurred. Credits due under the Service Level Agreement may be given, at REDPLAID's option, against the invoice for the month in which the event(s) occurred or the invoice for the following month. Payments must be made in United States dollars. Except as otherwise expressly provided in this Agreement, all fees and charges are non-refundable.

5.5 Interest and Collection. REDPLAID may charge Customer interest on the outstanding balance of any overdue amounts at a rate equal to 1.5% per month or the highest rate permitted by applicable law, whichever is lower. Customer will reimburse REDPLAID for all reasonable costs and expenses incurred (including reasonable attorneys' fees) in collecting any overdue amounts. Customer agrees to pay REDPLAID's reasonable costs of collection of overdue amounts, including collection agency fees, attorney's fees and court costs. Disputes as to the accuracy of an invoice must be presented in writing to REDPLAID by Customer within forty-five (45) days of the date of the invoice, and invoices that are not so disputed within such forty-five day time period are conclusively deemed accurate and accepted.

5.6 Suspension of Service. Without limiting any other right or remedy REDPLAID may have, REDPLAID may suspend any or all Services on four (4) Business Days' advance notice to Customer if payment for any Service is overdue. Customer agrees to pay REDPLAID's then current reinstatement fee following a suspension of service for non-payment or an AUP violation investigation.

6. Term and Termination.

6.1 Term. The term of this Agreement shall commence on the Effective Date and shall continue for the term specified in applicable Order Form or Statement of Work; subject, however, to renewal and earlier termination as hereinafter provided. Upon the expiration of the initial term and each renewal term, the term of this Agreement shall be renewed for successive periods equal to the initial period set forth on the applicable Order Form or Statement of Work unless one party gives the other party notice of its intention that the term of this Agreement not renew at least thirty (30) days before the expiration of the then-current term.

6.2 Termination by Customer. Customer may terminate this Agreement by giving notice to REDPLAID if (a) REDPLAID fails in a material way to provide the Managed Hosting Service in accordance with the terms of the Agreement and does not cure the failure within thirty (30) days of Customer's written notice describing the failure in reasonable detail, or (b) REDPLAID materially violates any other provision of the Agreement and fails to cure the violation within thirty (30) days of Customer's written notice describing the violation in reasonable detail, or (c) as provided in Section 4.6 (AUP) upon thirty (30) days advance written notice in the event of an amendment to the AUP that materially and adversely affects Customer and that is not waived by REDPLAID. In addition, Customer may terminate this Agreement immediately by giving written notice to REDPLAID, (a) if REDPLAID voluntarily files a petition for relief under the Bankruptcy Code, (b) if an order for relief under the Bankruptcy Code is entered against REDPLAID following the filing of an involuntary petition for relief under the Bankruptcy Code against REDPLAID, (c) if such an involuntary petition is filed against REDPLAID and the proceeding initiated by such filing is not terminated within sixty (60) days after the day on which such an involuntary petition is filed, (d) if REDPLAID makes an assignment for the benefit of its creditors, (e) if a receiver is appointed for REDPLAID or any of its assets, or (f) if any of REDPLAID's assets are attached or foreclosed.

6.3 Termination by REDPLAID. REDPLAID may terminate this Agreement by giving notice to Customer in the event Customer breaches any provision of this Agreement and fails to cure such breach within thirty (30) days after notice thereof is given to Customer by REDPLAID (except that such cure period shall be limited to four (4) Business Days in the event of a breach due to the failure to pay any amount due hereunder), and such termination shall be effective on the date set forth in such notice. In addition, REDPLAID may terminate this Agreement immediately by giving notice to Customer (a) if Customer voluntarily files a petition for relief under the Bankruptcy Code, (b) if an order for relief under the Bankruptcy Code is entered against Customer following the filing of an involuntary petition for relief under the Bankruptcy Code against Customer, (c) if such an involuntary petition is filed against Customer and the proceeding initiated by such filing is not terminated within sixty (60) days after the day on which such an involuntary petition is filed, (d) if Customer makes an assignment for the benefit of its creditors, (e) if a receiver is appointed for Customer or any of its assets, (f) if any of Customer's assets are attached or foreclosed, (g) if REDPLAID believes that Customer is or has violated the AUP, and/or (h) if REDPLAID's reasonably believes that Customer is infringing the intellectual property rights of others or is aiding or threatening such infringement. In addition, if REDPLAID is faced with a claim that the Services provided by REDPLAID infringe on the intellectual property rights of a third party, and REDPLAID is not reasonably able to obtain the right to use the infringing element or modify the Services such that they do not infringe, REDPLAID may terminate this Agreement by giving at least sixty (60) days prior notice to Customer, and will not have any liability on account of such termination, except to refund amounts paid for Services not used as of the time of termination. REDPLAID's termination rights provided in this Section 6.3 are in addition to any other rights and remedies available at law or in equity.

6.4 Obligations Upon Termination. Upon the expiration or earlier termination of this Agreement for any reason, Customer agrees (a) to immediately cease using all Services, (b) to promptly release any Internet protocol numbers, addresses or address blocks assigned to Customer in connection with the Service (but not any URL or top level domain or domain name), and (c) that REDPLAID may take steps to change or remove any such IP addresses. Unless Customer requests in writing to the contrary, REDPLAID agrees to destroy all Customer-provided software and data after expiration or termination of this Agreement, In the event Customer requests the return of its software or data, Customer agrees to be responsible for all costs associated with REDPLAID returning Customer's data and software, and any time spent by REDPLAID will be billable services as Systems Administration hours which Customer agrees to pay for prior to having its software and/or data returned.

6.5 Termination Fee. Customer acknowledges that the amount of the monthly recurring fee for the Managed Hosting Service is based on Customer's agreement to pay the fee for the entire term of the then-current term (i.e., the initial term or any renewal term). Accordingly, in the event REDPLAID terminates the Agreement as a result of Customer's breach of this Agreement, Customer agrees that all fees due under this Agreement, including the monthly recurring fees for the remaining portion of the then-current term, shall be due on the Business Day following termination of the Managed Hosting Service, and Customer agrees to pay said fees within fifteen (15) days after the date of service termination.

7. Warranties, Disclaimer and Limitations of Liability.

7.1 Authority. Each of REDPLAID and Customer represents and warrants to the other of them that (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms, (b) no authorization or approval from any third party is required in connection with such party's execution, delivery, or performance of this Agreement, and (c) the execution, delivery, and performance of this Agreement does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.

7.2 Customer. Customer represents and warrants to REDPLAID that (a) all information Customer provides to REDPLAID for purposes of establishing and maintaining the Services is accurate and will remain accurate including, without limitation, correct contact information along with all other information entered as part of the order process, and (b) Customer will not use the Services for the development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles, in a country listed in Country Groups D:4 and D:3, as set forth in Supplement No. 1 to Part 740 of the United States Export Administration Regulations, and (c) Customer shall not provide access to the Service to any person (including any natural person or government or private entity) that is located in or is a national of any embargoed or highly restricted country under United States Export Regulations, which include as of August 2005 Cuba, Iran, Libya, North Korea, Sudan or Syria.

7.3 Disclaimer. Except for any service credits provided by REDPLAID through its Service Level Agreement, all Services and any third party products are provided to Customer on an "AS IS" basis. REDPLAID makes no representations or warranties relating to any Services or any third party products including, without imitation, any warranties that (a) the Services or third party products shall meet Customer's requirements, (b) the operation of the Services or third party products will be uninterrupted, error free or secure, or (c) any or all defects in the Services or third party products will be corrected. Customer acknowledges that there are risks inherent in operating computer servers and Internet connectivity that could result in the loss of Customer's privacy, confidential information, and property and that such risks shall be borne solely by Customer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.1 ABOVE AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, REDPLAID HEREBY DISCLAIMS ANY AND ALL WARRANTIES AND/OR REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, ORAL OR WRITTEN INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, SECURITY, REASONABLE CARE, AND/OR FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT REDPLAID KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE), IN EACH INSTANCE WITH RESPECT TO ANY AND ALL SERVICES AND ALL THIRD PARTY PRODUCTS. IN ADDITION, REDPLAID MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND THAT CUSTOMER WILL BE HIPAA COMPLIANT BY UTILIZING REDPLAID'S SERVICES, AND IT IS CUSTOMER'S SOLE RESPONSIBILITY TO ASSURE THAT IT TAKES APPROPRIATE STEPS TO ACHIEVE COMPLIANCE WITH ITS HIPAA OBLIGATIONS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, REDPLAID FURTHER DISCLAIMS ANY AND ALL WARRANTIES, AND/OR REPRESENTATIONS OF TITLE AND NON-INFRINGEMENT WITH RESPECT TO ANY AND ALL SERVICES AND ALL THIRD PARTY PRODUCTS.

7.4 Limitation of Liabilities. IN NO EVENT SHALL EITHER PARTY OR ITS RESPECTIVE PARENTS, SUBSIDIARIES, AFFILIATES, OR SUPPLIERS BE LIABLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT AND/OR ANY SERVICES, WHETHER FOR BREACH OF CONTRACT, IN TORT OR OTHERWISE, EVEN IF IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

IN NO EVENT WILL REDPLAID, ITS PARENTS, SUBSIDIARIES, AFFILIATES OR SUPPLIERS BE LIABLE FOR (A) ANY DAMAGES OF ANY NATURE WHATSOEVER RESULTING FROM, OR RELATED TO, BUSINESS INTERRUPTION, A BREACH OF SECURITY IN RESPECT OF ANY OF THE SERVICES, AND/OR THE LOSS, DELAY OR INABILITY TO USE ANY SERVICES, AND/OR (B) THE LOSS OF ANY DATA, ANY INFORMATION, SOFTWARE, PRODUCTS, AND/OR SERVICES CAUSED BY THE SERVICES INCLUDING, WITHOUT LIMITATION, THE COST OF RECREATING LOST DATA, COST OF COVER.

IN ALL EVENTS, REDPLAID'S AGGREGATE LIABILITY FOR CLAIMS RELATING TO THIS AGREEMENT AND ANY AND ALL SERVICES, WHETHER FOR BREACH OF CONTRACT, IN TORT OR OTHERWISE, SHALL NOT EXCEED THE GREATER OF (Y) AMOUNT PAID BY CUSTOMER FOR THE MANAGED HOSTING SERVICE FOR THE THREE (3) MONTHS PRIOR TO THE OCCURRENCE OF THE EVENT(S) GIVING RISE TO THE CLAIM, OR (Z) AN AMOUNT EQUAL TO THE MONTHLY FEE APPLICABLE TO THE MANAGED HOSTING SERVICE FOR THE MONTH IN WHICH THE EVENT(S) GIVING RISE TO THE CLAIM OCCURRED (WHETHER OR NOT SUCH FEE WAS PAID BY CUSTOMER). IN ANY JURISDICTION IN WHICH THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 7.4 ARE RESTRICTED, REDPLAID'S LIABILITY SHALL LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

7.5 Risk Allocation. The provisions of this Section 7 represent a reasonable allocation of the risks under this Agreement. REDPLAID's willingness to enter into this Agreement and provide the Services contemplated by this Agreement reflects this allocation of risk and the limitations of liability specified herein.

8. Indemnification. bject to the provisions of Section 7, Customer agrees to indemnify and hold REDPLAID, its parents, subsidiaries, and affiliates and each of their respective officers, directors, attorneys, agents, and employees (each an "Indemnified Party") harmless from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including, without limitation, any and all attorneys' and expert witness fees and court costs), that any Indemnified Party may incur or may be subject under any theory of legal liability to the extent arising out of or related to (a) the actual or alleged use of the Services in violation of, or by any allegation which, if true, would constitute a violation of, (i) the AUP, and/or (ii) any applicable law, in each instance by any person regardless of whether such person has been authorized to use the Services by Customer, (b) any dispute regarding the control of Customer's account with REDPLAID, and/or (c) a breach of this Agreement by Customer, or by any allegation which, if true, would constitute a breach of this Agreement by Customer. Without limiting the generality of the foregoing, Customer shall pay REDPLAID $250.00 per hour (in one-hour minimum increments) for time reasonably spent by REDPLAID personnel in responding to third party complaints regarding Customer's use or alleged use of the Services in violation of, or by any allegation which, if true, would constitute a violation of, the AUP including, without limitation, complaints under the Digital Millennium Copyright Act.

Subject to the provisions of Section 7, REDPLAID agrees to indemnify and hold Customer and Customer's officers, directors, attorneys, agents, and employees (each a "Customer Indemnified Party") harmless from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including, without limitation, any and all attorneys' and expert witness fees and court costs), that any Customer Indemnified Party may incur or may be subject under any theory of legal liability to the extent arising out of or related to a breach of this Agreement by REDPLAID.

9. Confidentiality.

9.1 Definition of Confidential Information. The term "Confidential Information" means, subject to Section 9.2 below, (a) with respect to REDPLAID, REDPLAID's Trade Secrets and all Feedback (as defined in Sections 10.1 and 10.2), regardless of whether they are marked "confidential" or otherwise designated as "confidential", (b) with respect to Customer, content transmitted to or from, or stored by Customer on, REDPLAID's servers or devices, and (c) with respect to both parties, other information that is conspicuously marked as "confidential" or if disclosed in non-tangible form, is verbally designated as "confidential" at the time of disclosure and confirmed as confidential in a written notice given within one (1) day of disclosure.

For purposes of Section 9.1, the term "Customer Trade Secrets" means all information of Customer that constitutes a trade secret under applicable law and which is Confidential Information of Customer pursuant to Section 9.1(b) or Section 9.1(c) above, except as provided in Section 9.2 below.

9.2 Exclusions. The term "Confidential Information" does not include information, however designated, that (a) is publicly available or subsequently becomes publicly available without disclosure by the party to whom such information was provided under this Agreement (each a "Receiving Party") and any said disclosure of publicly available information shall not be considered a breach of any obligation owed to the party that provided the information (each a "Disclosing Party"), (b) is known to the Receiving Party prior to the Disclosing Party's disclosure of such information to the Receiving Party without any restriction on the Receiving Party's further use or disclosure, (c) becomes known to the Receiving Party from a source other than the Disclosing Party other than by the breach of an obligation of confidentiality owed to the Disclosing Part and without any restriction on the Receiving Party's further use or disclosure, and/or (d) is independently developed by the Receiving Party, without reference to or use of the Disclosing Party's Confidential Information.

9.3 General Obligations. Subject to the further provisions of this Section 9.3 and to Section 9.4 below, the Receiving Party agrees that during the term of this Agreement and for a period of three (3) years thereafter it will (a) refrain from disclosing any Confidential Information of the Disclosing Party to third parties, (b) take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information but no less than reasonable care, to keep confidential the Confidential Information of the Disclosing Party, and (c) refrain from using the Confidential Information of the Disclosing Party except in furtherance of its obligations under this Agreement or as necessary to exercise the rights granted to it under this Agreement; provided, however, that (a) Customer's obligations under this Section 9.3 shall continue indefinitely beyond such three (3) year period with respect to REDPLAID's Trade Secrets until such time as REDPLAID's Trade Secrets no longer constitute trade secrets under applicable law, and (b) REDPLAID's obligations under this Section 9.3 shall continue indefinitely beyond such three (3) year period with respect to Customer's Trade Secrets until such time as Customer's Trade Secrets no longer constitute trade secrets under applicable law REDPLAID may disclose the Confidential Information of Customer to REDPLAID's service providers, agents and representatives who are bound by confidentiality restrictions at least as restrictive as those stated in the Agreement.

9.4 Requests for Customer Information. Notwithstanding anything contained in this Agreement to the contrary, Customer agrees that REDPLAID may, without notice to Customer, (a) report to the appropriate authorities any conduct by Customer or any of Customer's customers or end users that REDPLAID believes violates applicable law; and (b) provide any information, including Confidential Information, 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 government agency. Customer also agrees that REDPLAID may provide any information, including Confidential Information, it has about Customer or its customers or end users in response to a formal request in a civil action that on its face meets the requirements for such a request, provided however, that if REDPLAID pursuant to a civil action is legally compelled to disclose any of the Customer's Confidential Information, REDPLAID will provide Customer with prompt written notice thereof, so that Customer, at its sole expense, may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of Section 9 of this Agreement, and in the event such protective order or other remedy is not obtained or if Customer waives compliance with the provisions of this Section 9 of this Agreement, REDPLAID may furnish such Confidential Information of Customer that REDPLAID is legally obligated to disclose.

10. Ownership and REDPLAID Competitors.

10.1 General. Subject to the further provisions of this Section 10.1, each party acknowledges and agrees that: (i) nothing in this Agreement transfers ownership in any of such party's trade secrets, inventions, copyrights, and other intellectual property to the other party and (ii) each party owns their respective intellectual property. Further, REDPLAID acknowledges that Customer owns, and shall continue to own, any and all data and content which Customer stores on REDPLAID's servers, and nothing in this Agreement shall transfer ownership of Customer's data or content to REDPLAID. Customer acknowledges and agrees that (a) REDPLAID owns, and shall continue to own any and all intellectual property (including, without limitation, all of REDPLAID's Trade Secrets) that REDPLAID may utilize or develop in the course of performing the Services, and (b) Customer does not acquire any ownership interest or rights to possess REDPLAID's server(s) or other hardware, and has no right of physical access to the hardware. To the extent that Customer provides any comments, instructions, suggestions, supporting information, and/or other feedback to REDPLAID, respecting any Services and/or any other subject matter of this Agreement (collectively, "Feedback"), such Feedback shall be owned exclusively by REDPLAID. To the extent Customer has or obtains any intellectual property rights in or to any Feedback, Customer shall be deemed to assign all right, title and interest therein, if any, to REDPLAID as of the date such right first vests in Customer.

10.2 REDPLAID's Trade Secrets. Customer acknowledges and agrees that in the course of providing Managed Hosting Services to Customer, REDPLAID may disclose (or Customer may otherwise learn) one or more of REDPLAID's Trade Secrets. For example, in the course of providing Managed Hosting Services to Customer, REDPLAID may give Customer, as applicable, full (a) "Root access" (for Linux), and/or (b) "Admin access" (for Windows), in each instance to REDPLAID's software and hardware including REDPLAID's servers. Customer further acknowledges and agrees that in the course of such access, Customer may gain access and knowledge to certain tools, methods and techniques used by REDPLAID to deliver REDPLAID's uniquely high levels of performance, security, cost-effectiveness, and reliability with respect to the Manage Hosting Services and otherwise (all of such tools, methods and techniques shall be referred to collectively herein as "REDPLAID's Managed Hosting Tools"). Without limiting the generality of Section 9 above, Customer further acknowledges and agrees that REDPLAID's Managed Hosting Tools and all other of REDPLAID's Designated Trade Secrets (x) are not generally known to, and are not readily ascertainable by proper means by, Customer or by third parties, (y) derive independent economic value to REDPLAID from not being generally known to, and not being readily ascertainable by proper means by, Customer or by third parties, and (z) are the subject substantial efforts by REDPLAID to maintain their confidential nature. Customer further acknowledges and agrees that third parties would obtain economic value from the disclosure of REDPLAID's Designated Trade Secrets to them. Customer acknowledges and agrees that all REDPLAID's Trade Secrets constitute REDPLAID's trade secrets under applicable law.

10.3 REDPLAID Competitors. Customer represents and warrants to REDPLAID that, as of the Effective Date, neither Customer nor any Customer Affiliates is a REDPLAID Competitor. Customer further covenants and agrees that, during the term of this Agreement, neither Customer nor any Customer Affiliates will, directly or indirectly, (a) constitute a REDPLAID Competitor, and/or (b) engage or encourage any REDPLAID Competitor or its employees, relatives or friends of employees, agents, contractors, vendors, affiliates or assigns to utilize any Service of REDPLAID for any reason whatsoever.

11. Miscellaneous.

11.1 REDPLAID's Use of Customer's Name. Customer agrees that REDPLAID may publicly disclose that REDPLAID is providing services to Customer and may include Customer in promotional materials, including press releases and on REDPLAID's web site.

11.2 Amendment. Except as provided in Section 4.6 above with respect to the AUP, this Agreement may not be modified, amended, rescinded, canceled or waived, in whole or in part, except pursuant to a writing signed by the parties. Accordingly, no course of conduct shall constitute an amendment hereto.

11.3 Governing Law/Jurisdiction. This Agreement shall be deemed to be executed in St. Louis, Missouri. This Agreement, and all matters arising out of or relating to this Agreement, shall be governed by the laws of the State of Missouri and the United States, without giving effect to the conflict of law provisions thereof and excluding any application of the United Nations Convention on Contracts for the International Sale of Goods. Customer consents to exclusive jurisdiction and venue in the federal courts sitting in St. Louis, Missouri, unless no federal subject matter jurisdiction exists, in which case Customer consents to exclusive jurisdiction and venue in the state courts sitting in St. Louis County, Missouri. Customer hereby irrevocably waives, to the fullest extent permitted by applicable law, any objection which it may now or hereafter have to the laying of venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum. Any action of any kind arising out of or in any way connected with this Agreement, other than collection of outstanding payment obligations, must be commenced within one (1) year of the date upon which the cause of action accrues.

11.4 Survival. Each provision of this Agreement that would by its nature or terms survive any termination of this Agreement shall survive any termination of this Agreement, regardless of the cause. Such provisions include, without limitation, Sections 5, 6.4, 6.5, 7.4, 7.5, 8, 9, and 10, and this Section 11.

11.5 Notices and Customer Contact. All notices given hereunder including, without limitation, notices of address change shall be given in English and in writing. Notices to REDPLAID under the Agreement shall be sent by certified mail, return receipt requested, postage and fees prepaid, at the address set forth within this Agreement or to such other address as REDPLAID may hereafter designate in writing. Notices given to REDPLAID shall be sent to the attention of "President". Subject to Section 4.6 above, notices to Customer shall be given via electronic mail to any one or more of the individuals and entered into by Customer as part of the online ordering process and/or by other means reasonable under the circumstances, including an e-mail to a known contact. Any notices given in accordance with this Section 11.5 shall be deemed given on the day delivered, or if that day is not a Business Day, on the first Business Day following the day delivered. Notices given by email to Customer shall be deemed delivered on the date they are sent, whether or not that day is a Business Day.

11.6 Force Majeure. REDPLAID shall not be responsible or liable for any damages, delays, or other failures to fulfill its obligations hereunder as a result of war, fire, strike, riot or insurrection, natural disaster, delay of carriers, governmental order or regulation, complete or partial shutdown of plant, unavailability of materials or equipment from suppliers, failures or blackouts, labor disputes, and/or other occurrences beyond its control whether or not similar to those listed above.

11.7 Assignment. Neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned by Customer (whether by operation of law or otherwise) without the prior written consent of REDPLAID, whose consent shall not be unreasonably withheld. REDPLAID may assign this Agreement without the consent of Customer. Subject to the foregoing, this Agreement shall be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and permitted assigns.

11.8 Construction. All captions contained in this Agreement are for convenience only and shall not be deemed to be part of this Agreement. Accordingly, they shall not constitute a part of this Agreement when interpreting or enforcing this Agreement. Each party has substantially participated in the drafting and negotiation of this Agreement, and no provision hereof shall be construed against either party by virtue of the fact that such provision was drafted by such party. All defined terms used in this Agreement shall be deemed to refer to the masculine, feminine, neuter, singular and/or plural, in each instance as the context and/or particular facts may require. Use of the terms "hereunder", "herein", "hereby", and similar terms refer to this Agreement.

11.9 Relationship of Parties. Each of the parties to this Agreement is acting only as an independent contractor and assumes full responsibility for each of its employees and shall be solely responsible for the payment of compensation to its personnel. This Agreement does not constitute either party hereto as the agent or legal representative of the other party and does not create a partnership or joint venture between them. For the avoidance of doubt, The Agreement is non-exclusive. REDPLAID may provide service to any person, including a competitor of Customer.

11.10 Severability. If any provision of this Agreement is declared or found to be illegal, unenforceable or void, then both parties shall be relieved of all obligations arising under such provision, but only to the extent that such provision is illegal, unenforceable or void, it being the intent and agreement of the parties that this Agreement shall be deemed amended by modifying such provision to the extent necessary to make it legal and enforceable while preserving its intent or, if that is not possible, by substituting therefore another provision that is legal and enforceable and achieves the same objective. If the remainder of this Agreement shall not be affected by such declaration or finding and is capable of substantial performance, then, each provision not so affected shall be enforced to the extent permitted by law.

11.11 Waiver. A party's failure to enforce any provision or provisions of this Agreement shall not in any way be construed as a "course of dealing" or a waiver of any such provision or provisions as to any future violations thereof, nor prevent that party thereafter from enforcing each and every other provision of this Agreement. No waiver shall be binding upon a party unless it is in writing and signed by such party. Such waiver shall apply only to the specific default or the instance specified, and a waiver of any default shall not waive any other default, whether or not similar to the default waived. The rights granted the parties are cumulative and the waiver by a party of any single remedy shall not constitute a waiver of such party's right to assert all other legal remedies available to such party under the circumstances.

11.12 Cumulative Remedies. No right or remedy conferred by this Agreement is exclusive of any other right or remedy conferred herein or by law or in equity; rather, all of such rights and remedies are cumulative of every other such right or remedy and may be exercised concurrently or separately from time-to-time.

11.13 Availability of Equitable Relief. Customer acknowledges and agrees that noncompliance with the terms of this Agreement may cause irreparable injury to REDPLAID for which REDPLAID will have not an adequate remedy at law, and that REDPLAID shall therefore be entitled to apply to a court for extraordinary relief, including but not limited to temporary restraining orders, preliminary injunctions, permanent injunctions, or decrees of specific performance, in each instance without the necessity of posting a bond. Nothing contained in this Section 11.13 shall prohibit REDPLAID from pursuing any other legal or equitable remedy available to it.

11.14 Nonsolicitation. For the term of this Agreement and thereafter for a period of one (1) year, Customer agrees that it will not solicit, directly or indirectly, the employment of REDPLAID's personnel performing duties related to this Agreement or with whom Customer has had direct contact. In the event of a violation of this provision, in addition to any other right REDPLAID may have at law or in equity, Customer shall make a one-time payment to REDPLAID in the amount of fifty percent (50%) of the employee's base salary for one year.

11.15 No Third Party Beneficiaries. Nothing in this Agreement shall confer upon any person other than the parties and their respective successors or assigns, any rights, remedies, obligations, or liabilities whatsoever.


Learn More
If you'd like to learn more about REDPLAID Managed Hosting, please contact us.