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Server Powered Terms of Service & Legal DisclosureThe following Terms of Service and Legal Disclosure must be accepted by any party that uses any of the Server Powered, LLC services. Acceptance is gained by digitially signing this agreement at the time of signup for services. ServerPowered TERMS OF SERVICE (TOS)These Server Powered, LLC Terms of Service (this " Agreement ") and Server Powered, LLC's Acceptable Use Policy (" AUP ") govern your purchase and use of all Server Powered, LLC services (collectively, the " Services "), as described in the Order Form(s) submitted by you and accepted by Server Powered, LLC. You must register and accept the terms of this Agreement and the AUP in order to use the Services. BY CLICKING ON THE "I Agree to the Terms of Service" CHECKBOX DURING SIGNUP, AND/OR REGISTERING FOR AND USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND THE AUP AND AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT AS WELL AS ALL POLICIES AND GUIDELINES OF THE AUP, WHICH ARE INCORPORATED HEREIN BY REFERENCE. Server Powered, LLC may modify any of the terms and conditions contained in this Agreement and the AUP, at any time in its sole discretion. Any modifications are effective upon posting of the revisions on the Server Powered, LLC web site (the " Site "). Your continued use of the Services following Server Powered, LLC's posting of any modifications constitutes your acceptance of the modifications. If you do not agree to the terms of any modification, do not continue to use the services and immediately notify Server Powered, LLC of your termination of this Agreement in the manner described in the "Cancellation" section below. Term and Payment for Services.TermThis Agreement will be for an " Term " of 1 month from the date the Services are first provided by Server Powered, LLC. This Agreement will be automatically renewed (the " Renewal Term ") at the end of the Initial Term or any Renewal Term for a period of thirty (30) days unless you provide Server Powered, LLC with written notice of termination at least 5 (five) business days before the end of the Initial Term or Renewal Term, whichever is then applicable. To schedule your account for cancellation, please use the following online cancellation form: http://www.serverpowered.com/cancel.php This will ensure that your account is processed for cancellation and will generate an email that will be sent to you regarding full details of your request as well as the offline date of your server. We cannot be held responsible for continued invoicing if the above method is not followed. The cancellation process may take up to 2 (two) business days to complete. TerminationThis Agreement may be terminated: (i) by you or Server Powered, LLC during any Renewal Term, without cause, by giving the other party five (5) business days prior to your renewal date by written notice; (ii) by Server Powered, LLC in the event of nonpayment by you as provided in this agreement; and (iii) by Server Powered, LLC, at any time, without notice, if, in Server Powered, LLC's sole judgment, you are in violation of any terms or conditions of the AUP. If you terminate this Agreement, or if Server Powered, LLC terminates this Agreement for your breach, before the end of the Initial Term or the Renewal Term, whichever is then applicable, you will be required to pay immediately all fees and costs accrued before the termination date, all monthly recurring fees for each month remaining in the term and any other amounts you owe to Server Powered, LLC under this Agreement. ChargesYou will pay all charges for your use of the Services at the then current Server Powered, LLC prices. You are 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 Server Powered, LLC's net income. PaymentYou will pay all charges for the first month of service in advance on the first day of the Initial Term. You will pay all subsequent charges for Services in advance on the aniversary day of each month according to the then current price for the Services." You must pay for the Services by credit card. You authorize Server Powered, LLC to charge your credit or debit card to pay for any charges that may apply to your account. You must notify Server Powered, LLC of any changes to your card account (including, applicable account number or cancellation or expiration of the account), your billing address, or any information that may prohibit Server Powered, LLC from charging your account. Your failure to fully pay any fees and taxes within 72 hours from the applicable due date is a material breach of this Agreement, justifying Server Powered, LLC to suspend its performance and terminate this Agreement. If Server Powered, LLC terminates for your material breach, you will be required to pay immediately all fees and costs accrued before the termination date, all monthly recurring fees for each month remaining in the term and any other amounts you owe to Server Powered, LLC under this Agreement. You are responsible for any costs Server Powered, LLC incurs in enforcing collection, including reasonable attorneys' fees, court costs and collection agency fees. To reinstate Services, you must pay for 3 months of Service in advance on the first day such Services are reinstated and any fees associated with reinstating Services. Requirements for using Microsoft softwareSubscribers are prohibited from allowing more than five (5) authenticated users of the Microsoft Windows Server Operating Systems under Microsoft licensing terms and could create liability issues with Microsoft if violated. Refund and DisputesAll payments to Server Powered, LLC are nonrefundable. This includes any applicable setup fees and subsequent charges regardless of usage. All overcharges or billing disputes must be reported within 60 days of the time the dispute occurred. If you dispute a charge to your credit card issuer that, in Server Powered, LLC's sole discretion is a valid charge under the provisions of this Agreement and/or AUP, you agree to pay Server Powered, LLC an "Investigation Fee" of $100.00. Use of ServicesAcceptable Use PoliciesThe AUP governs the general policies and procedures for use of the Services. The AUP is posted on the site at http://www.serverpowered.com/aup.php (or such other location as Server Powered, LLC may specify) and may be updated from time to time. BY USING THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF THE AUP AND ANY MODIFICATIONS TO THE TERMS. Server Powered, LLC MAY TERMINATE YOUR ACCOUNT WITHOUT NOTICE FOR ANY VIOLATION OF THE AUP OR THIS AGREEMENT. Domain NamesUpon registering your domain name, you are bound by the terms of the registration service's then current domain name policy and the policies of the national DNS registration authorities. Server Powered, LLC will not refund any fees you paid with respect to the registration of a domain name you are unable to use. All new webhosting accounts involving new domains will be set up and entered into our DNS servers within 3 to 5 business days. Due to unforeseen complications, however, this process may sometimes require up to 7 business days. If the new domain is registered by you, there will be no handling fee. If the domain is registered by Server Powered, LLC on your behalf a handling fee will be incurred. New webhosting accounts which involve the transfer of a domain from another provider to Server Powered, LLC will require a minimum of seven (7) days to be set up and entered into our DNS servers. In some cases, such transfers may take up to sixty (60) days. 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 Server Powered, LLC on your behalf, a handling fee will be incurred. If you cancel service during the transfer period for any reason, all charges are considered earned. SecurityYou are solely responsible for any security breaches affecting servers or accounts under your control. If your server is responsible for or involved in an attack on or unauthorized access into another server or system, Server Powered, LLC will shut it down immediately. You will pay any charges resulting from the cost to correct security breaches affecting Server Powered, LLC or any of its other customers. BackupsYou are solely responsible for any and all backups of your data. Server Powered, LLC may not be held accountable for any loss of data due to hardware or software failure. Server Powered, LLC highly recommends daily backups for your protection. Intellectual Property RightsYour Warranties and Representations to Server Powered, LLC. You warrant, represent, and covenant to Server Powered, LLC that: (a) you are at least 18 years of age if an individual, (b) you possess the legal right and ability to enter into this Agreement; (c) you will use the Services only for lawful purposes and in accordance with this Agreement and all applicable policies and guidelines, including the AUP; and (d) your 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. IP AddressesServer Powered, LLC will maintain and control ownership of all Internet protocol (" IP ") numbers and addresses that Server Powered, LLC may assign to you. Server Powered, LLC may, in its sole discretion, change or remove any and all IP numbers and addresses without notice at any time for any reason. Server Powered, LLC may provide you access to other third party software and/or services ("Third Party Products ") through reseller relationships Server Powered, LLC has established with certain commercial vendors, including without limitation, Microsoft Corporation ("Third Party Vendors"). Unless otherwise notified, Customer understands that product support for Third Party Products is provided by Server Powered, LLC and not by the Third Party Vendor. Neither Server Powered, LLC nor any Third Party Vendor makes any representations or warranties, express or implied, regarding any Third Party Products. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THIRD PARTY PRODUCTS IS AT CUSTOMER'S SOLE RISK AND SUCH THIRD PARTY PRODUCTS ARE PROVIDED "AS IS" AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND FROM Server Powered, LLC OR ANY THIRD PARTY VENDOR, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, LACK OF VIRUSES, ACCURACY OR COMPLETENESS OF RESPONSES OR RESULTS, CORRESPONDENCE TO DESCRIPTION, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER Server Powered, LLC NOR ANY THIRD PARTY VENDOR WILL BE LEGALLY RESPONSIBLE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, OR CONSEQUENTIAL, ARISING FROM THE USE OR INABILITY TO USE ANY THIRD PARTY PRODUCT. CUSTOMER AGREES TO OBSERVE THE TERMS OF ANY LICENSE AND/OR APPLICABLE END USER SUBSCRIBER AGREEMENT FOR THIRD PARTY PRODUCTS AND THAT CUSTOMER SHALL BE FULLY LIABLE TO THIRD PARTY VENDORS AND Server Powered, LLC WITH RESPECT TO ANY IMPROPER USE OF SUCH THIRD PARTY PRODUCTS OR VIOLATION OF LICENSE AGREEMENTS WITH THEM AND/OR APPLICABLE END USER SUBSCRIBER AGREEMENTS. You shall not (i) remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any Third Party Product or that appear during use of any Third Party Product; or (ii) reverse engineer, decompile, or disassemble any Third Party Product, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. Enforcement ActionsServer Powered, LLC reserves the right to suspend or terminate the Service immediately or take any other corrective action it deems appropriate in its sole discretion if in the sole judgment of Server Powered, LLC your server is the source or target of any violation of the AUP or for any other reason which Server Powered, LLC chooses. If inappropriate activity is detected, all of your accounts in question will be deactivated until an investigation is complete. Prior notification to you is not assured. In some cases, law enforcement will be contacted regarding the activity. These rights of action, however, do not obligate Server Powered, LLC to monitor or exert editorial control over the information made available for distribution via the Services. If Server Powered, LLC takes corrective action because of a possible violation, Server Powered, LLC will not refund to you any fees you paid in advance of the corrective action. Disclosure RightsThe AUP specifically prohibits the use of our service for illegal activities. Therefore, you agree that Server Powered, LLC may disclose any and all of your information including assigned IP numbers, account history, account use, etc. to any law enforcement agent who makes a written request without further consent or notification to you. In addition, Server Powered, LLC shall have the right to terminate all service set forth in this Agreement. Disclaimed WarrantiesServer Powered, LLC exercises no control over, and accepts no responsibility for, the content of the information passing through Server Powered, LLC's host computers, network hubs and points of presence, or the Internet. USE OF THE SERVICES OR ANY INFORMATION THAT MAY BE OBTAINED THEREFROM IS AT YOUR OWN RISK. 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. Server Powered, LLC DOES NOT MAKE AND DISCLAIMS, AND YOU WAIVE ALL RELIANCE ON, ANY REPRESENTATIONS OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING THE SERVICES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. Server Powered, LLC DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. Limitation and Exclusion of Liability.LimitationsIN NO EVENT WILL Server Powered, LLC 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. NEITHER Server Powered, LLC NOR ITS SUPPLIERS WILL HAVE LIABILITY WITH RESPECT TO Server Powered, LLC'S OBLIGATIONS UNDER THIS AGREEMENT, OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF Server Powered, LLC HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES. THE LIABILITY OF Server Powered, LLC AND ITS SUPPLIERS TO YOU FOR ANY REASON AND UPON ANY CAUSE OF ACTION IS LIMITED TO THE AMOUNT YOU ACTUALLY PAID TO Server Powered, LLC UNDER THIS AGREEMENT DURING THE 3 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. THE FEES FOR THE SERVICES SET BY Server Powered, LLC UNDER THIS AGREEMENT HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY, YOU RELEASE Server Powered, LLC AND ITS SUPPLIERS FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIMS IN EXCESS OF THE LIMITATION STATED IN THIS AGREEMENT. Interruption of ServiceServer Powered, LLC and its suppliers are not liable for any temporary delay, outages or interruptions of the Services. Further, Server Powered, LLC 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, communications or third-party supplier failure). IndemnificationIn agreeing to the Server Powered, LLC AUP and this Agreement, you agree to indemnify, defend and hold harmless Server Powered, LLC, its employees, directors, partners, representatives and affiliates, for any violation by you or your customers of the AUP or this Agreement that results either in loss to Server Powered, LLC or the bringing of any claim against Server Powered, LLC by any third-party. For example, if Server Powered, LLC is sued because of your or your customer's activity related to the Services, you will pay any damages awarded against Server Powered, LLC, its employees, directors, partners, representatives and affiliates, plus all costs and attorney's fees. MISCELLANEOUS PROVISIONS.Server Powered, LLC and you agree that, except as otherwise expressly provided in this Agreement, the Order Form(s) or the terms and conditions of use of any third party software products, there shall be no third party beneficiaries to this Agreement, including but not limited to the insurance providers for either party or your customers. THIS AGREEMENT IS MADE UNDER AND WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA (EXCEPT THAT BODY OF LAW CONTROLLING CONFLICTS OF LAW) AND SPECIFICALLY EXCLUDING FROM APPLICATION TO THIS AGREEMENT THAT LAW KNOWN AS THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE THE STATE AND FEDERAL COURTS IN FLORIDA, AND EACH PARTY IRREVOCABLY CONSENTS TO SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO. In the event any provision of this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. You may not sell, assign or transfer its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of Server Powered, LLC, and any attempted assignment or delegation without such consent will be void. Server Powered, LLC may assign this Agreement in whole or part. Server Powered, LLC also may delegate the performance of certain Services to third parties. All notices, demands, requests or other communications required or permitted under this Agreement shall be deemed given when delivered personally, sent by facsimile upon confirmation, sent and received by return receipt email, or upon receipt of delivery of overnight mail. You and Server Powered, LLC are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between you and Server Powered, LLC. This Agreement, including all documents incorporated herein by reference, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter. SurvivalAll provisions of this Agreement relating to your warranties, intellectual property rights, limitation and exclusion of liability, your indemnification obligations and payment obligations will survive the termination or expiration of the Agreement. Refusal of ServiceServer Powered, LLC reserves the right to refuse or cancel service in its sole discretion without refunds, for any reason at any time, with or without notice to you. Upon the following conditions, will Refusal of Service take effect:
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