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Monthly Hosting Agreement

OVERVIEW

The terms "Company”, "we”, "us” or "our” shall refer to XD3V. The terms "Client”, "you”, "your” or "customer” shall refer to any individual or entity who accepts and signs this Agreement. Client’s customers, or other parties who use the Services we provide through you, are referred to as "End Users.” Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.

This Hosting Agreement (hereafter referred to as the "Agreement”) is entered into by and between XD3V and you, the Company. This Agreement sets forth the terms and conditions of your use of XD3V’s hosting services (hereafter referred to as the "Services”), and represents the entire agreement between you and XD3V concerning the subject matter hereof.

SERVICES

Subject to the terms and conditions of this Agreement, Company will provide Services to Client subject to the following terms:

• Fast and reliable website hosting for one domain
• Daily data backups for disaster recovery purposes
• 24/7 server monitoring with real-time alerts
• Software security updates to protect your website

• Emergency repairs
• 10,000 Pageviews (monthly, for each site)
• 1 GB SSD Storage (for each site)
• 10 GB Transfer (monthly, for each site)
• 20 GB CDN (for each site)

Disaster Backup is designed for our needs: to restore the Services in an emergency. Data restored from a Disaster Backup may not be formatted in the original manner, and may not capture all data. We have no liability to you, or End Users, to restore all of your data. Disaster Backups are not designed for litigation purposes. Customization of these backups at Client’s request may be billed separately.

Company may make minor changes to address technical issues and ensure the stability of our network. Company will not provide Client with notice of these minor changes unless we have a reasonable belief that such a change will affect our general customers’ use of the Services.

Company may incorporate the services of third parties into the Services (Third Party Services). The providers of Third Party Services may have reserved the right to make changes in their services. If we are unable to secure replacement services on terms that are reasonable to us, we may discontinue the affected Third Party Services. We are not in breach of this Services Agreement, and Client may not terminate it, in such a case.

Company will use commercially reasonable efforts to make the Services available to Client. Client agrees to use the Services as set out in this Services Agreement in a commercially reasonable manner and to provide Company with information we need to provide the Services to you.

If Client purchases a dedicated IP address from Company, we grant you the right to use the IP address we assign to you during the Term. You only have the right to use this IP address during the Term and subject to this Services Agreement. Upon the end of the Term, this IP address will be recycled by us and reused; you will have no further right to use it. You will have no access to the equipment providing the dedicated IP address.

Storage, Monthly Visits, and Bandwidth for Services are metered. This means Client will be charged for the use of the Services based on the usage and fees defined on this Agreement.

Client consents to Company’s use of all information we collect from you for any and all purposes limited solely by the law governing this Services Agreement. We may use this information for purposes we deem reasonable. These reasons include, but are not limited to: (i) our marketing efforts; (ii) improvement of our services; or (iii) complying with the law (such as the Digital Millennium Copyright Act, subpoenas and warrants).

Client grants Company, Company’s affiliates, providers of Third Party Services, and subcontractors, a limited, personal, transferable, nonexclusive license to use Client data during the Term for the purposes of providing Services.

Company will provide the Services to Client, according to this Services Agreement. Company does not have to provide the Services to Client if Client is in breach of this Agreement.

The first payment plus setup charges, if any, shall be due in advance of any service provided.

TERM AND RENEWAL

Client agrees to an initial one (1) month contractual Term of Service (hereafter referred to as "Terms”).

The Effective Date of this Agreement shall begin upon Company’s receipt of payment for such first Term of service or upon a mutually agreed upon alternate date.

This Agreement will automatically renew for successive one (1) month Term unless canceled in writing by Client at least 30 days prior to the end of Term renewal date. Renewal prices are subject to change. Renewal of Services by Client indicates agreement to any Contract revisions and price changes.

FEES AND PAYMENT

Fees will be $30 USD per month for the Services set forth in this Agreement

Client will be charged the Fees beginning on the Effective Date. Payments are not refundable except as expressly stated in this Agreement.

Company will collect the Fees by debiting credit, debit, or other similar sources of payment. Client must keep the method of payment current, and able to be debited.

If Client does not pay the Fees by the Due Date, Company will suspend Client’s ability to use the Services, and may terminate this Services Agreement. In addition, Third Party Services, like domain names, may be forfeited. If the Services are suspended because Company does not receive the Fees, Company will preserve Client’s data for thirty days from the date of suspension. After that time it may be deleted.

If Client believes that a Fee is not accurate, Client agrees to notify Company in writing within thirty days of charge. Company agrees not to suspend the Services in dispute as long as Client’s dispute is reasonable, made in good faith, and Client cooperates with Company to resolve the dispute.

Terms of payment are 'due on receipt’.

TERMINATION

Company and Client agree to provide the other with written notice, no later than thirty days prior to the expiration of a particular Term, of intent to terminate. Company and Client agree to provide all notices in writing.

Client may terminate this Services Agreement prior to the end of a Term if Company materially breach this Services Agreement, you have provided us with written notice of this breach and we have failed to cure it within thirty days from the date of your notice.

Even if other termination provisions in this Services Agreement provide differently, Company may terminate this Services Agreement prior to the end of a Term if: (i) you materially breach this Services Agreement, we have provided you with written notice of this breach, and you have failed to cure the breach within ten days from the date of our notice; (ii) you fail to pay Fees by the Due Date; (iii) your use of the Services endangers our network, violates the law, or inhibits our ability to provide the Services to our other customers; or (iv) it becomes economically infeasible to continue to provide the Services to you.

Upon termination you will no longer have access to the Services. This means that data may not be available to you. It is your obligation to download Data prior to termination or the end of a Term. Upon termination, all Services will be placed in the recycle queue and Data will be deleted. We are not responsible for this deleted Data.

CONFIDENTIAL INFORMATION

Confidential Information shall include, but not be limited to, the provisions of this Agreement, product and services information, pricing, and all other information not considered public. Company and Client agree to hold in confidence, and not disclose or reveal any Proprietary or Confidential Information to any person or entity for any purpose at any time, unless such disclosure is within the terms of this Services Agreement. Furthermore, Company and Client mutually agree to treat each other’s Proprietary and Confidential Information with the same care as it’s own.

The term "Confidential Information” does not include information that: (i) is or becomes generally known to the public without breach of any obligation; (ii) was known to either Company or Client prior to its disclosure without breach of any obligation owed to either party; (iii) is received from a third party without breach of any obligation owed to either party; or (iv) was independently developed by either party without reference to the Confidential Information.

Company and Client acknowledge that any breach of the provisions of this section governing Confidential Information may result in irreparable harm to the other party for which money damages may not be adequate. As a result, in addition to all other rights to which either party may have at law or in equity, either party shall be entitled to seek a decree of specific performance or injunctive relief against the other.

WARRANTIES

What both parties warrant. Each party warrants that they have the power, authority and legal right to enter into this Services Agreement and to perform the obligations set out in it, and those set out in contracts incorporated by reference.

What Company warrants. Company warrants that it owns all of the intellectual property that Company created when it is incorporated into the Services. If Company does not own the intellectual property incorporated into the Services, Company warrants that it has a license to use it.

What Client warrants. Client warrant that it, and its End Users, own, or have a license to use, all of the intellectual property that is placed on, or transmitted via, the Services. At Company’s request, Client will provide Company evidence of this ownership or license. Client warrants that neither it, nor its End Users’, use of the Services will infringe the intellectual property or other proprietary rights of Company, the providers of Third Party Services, or any other individual or entity. Client warrants that all information provide to Company by Client is complete, accurate and up-to-date.

DISCLAIMER

OTHER THAN AS IS EXPRESSLY SET OUT IN PARAGRAPH 7, THE SERVICES ARE PROVIDED AS-IS, AS AVAILABLE, AND WITH ALL FAULTS. EXCEPT AS EXPRESSLY PROVIDED IN THIS SERVICES AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND AGAIN, EXCEPT AS PROVIDED IN THIS SERVICES AGREEMENT, EACH PARTY AND THEIR LICENSORS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO: ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, UNINTERRUPTED OR ERROR FREE SERVICE, ERROR CORRECTION, AVAILABILITY, ACCURACY AND ANY AND ALL IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. COMPANY MAKES NO, AND SPECIFICALLY DISCLAIM ANY, WARRANTIES AS TO THIRD PARTY SERVICES.

LIMITATION OF LIABILITY

EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS SET OUT IN THIS SERVICES AGREEMENT, IN NO EVENT SHALL COMPANY’S LIABILITY ARISING OUT OF, OR RELATED TO, THIS SERVICES AGREEMENT, FOR ANY REASON, INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE SIX MONTHS FEES PAID BY CLIENT TO COMPANY. THE PROVIDERS OF THIRD PARTY SERVICES SHALL HAVE NO LIABILITY TO CLIENT UNDER THIS SERVICES AGREEMENT, AND COMPANY SHALL HAVE NO LIABILITY TO END USERS.

IN NO EVENT SHALL EITHER PARTY OR THEIR LICENSORS HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, THE SERVICES, INCLUDING, BUT NOT LIMITED TO, THE USE, OR INABILITY TO USE, THE SERVICES OR FOR ANY CONTENT, OR ANY INTERRUPTION IN THE SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CLIENT AGREES THAT THIS AGREEMENT IS ITS SOLE AND EXCLUSIVE REMEDY FOR INTERRUPTION IN THE SERVICES. THIS DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

ACCEPTABLE USE

The internet is essentially unregulated. Using Company’s Services requires common sense, and Client agrees not to use the Services in ways that violate the law, harm other people, or our network, or breach internet "community standards.” Client may not use the Services to enable others to do those things. Company has set out specific prohibited activities in this paragraph. However, because the nature of what is an acceptable use of the internet is constantly evolving, Company reserves the right to make changes to this section at any time. Company agrees to provide Client with notice of these changes, and if they materially affect your use of the Services, Client may terminate this Services Agreement without an Early Termination Fee if applicable. Client agrees to incorporate this section, or restrictions no less protective of Company’s interests, into Client’s contract with its End Users.

Client may not use the Services to violate any local, state or federal law or regulation. In particular, Client may not violate laws prohibiting: copyright, patent, trademark or trade secret infringement, misuse or misappropriation; distribution of child pornography, child erotica or bestiality; gambling, whether for remuneration or simple pleasure; defamation, harassment or libel; false advertising; transmission of malicious code or to gain access to other networks.

Client must use the Services to transmit email responsibly. Sending or promoting SPAM using the Services is prohibited. Company considers SPAM to be the transmission of any email messages that are in violation of the most recent regulations issued by the Federal Trade Commission implementing the CAN-SPAM Act. In addition and at Company’s discretion, Company may place limits on the number of outbound messages Client sends if Company’s review of Client’s account indicates that Client is jeopardizing Company’s network stability. Should Company determine that Client is using the Services to transmit SPAM, Company will add a $500 abuse charge for each confirmed violation of this paragraph.

Client may not overburden the Services. Client may not place excessive burdens on Company’s, or the providers of Third Party Services’, CPUs, servers or other resources or interfere with the services Company provides to other customers. Client may not use excessive bandwidth or data transfer. If Client’s Services are unmetered, and Client’s use of them exceeds the use of the Services by similarly situated customers, Company may offer to move Client to a metered plan. If Client refuse to move to a metered plan, Company may place restrictions on Client’s use of the Services until Client’s use corresponds with that of similarly situated customers.

Client may not use, or provide, open proxies or Internet Relay Chat.

Should Company determine that Client has violated this section, Company will add a $500 abuse charge. This charge will be added per violation, and, in the case of SPAM, is in addition to the SPAM abuse charge.

SECURITY

Company will use commercially reasonable efforts to ensure the security of Company’s internal networks from malicious activity. However, security is a shared responsibility. Client agrees to configure Client’s use of the Services in such a way as to maintain the security of Company’s Services and network. This configuration includes, but is not limited to, only uploading software that has been demonstrated to be secure, installing patches, and not sharing passwords.

Should Company determine that Company’s network has been accessed in an unauthorized manner, and that unauthorized access impacts Client’s Services, Company agree to notify Client as soon as possible, but only after Company has investigated the unauthorized access and fulfilled Company’s legal obligations under the law governing this Services Agreement. Client agrees to the same notification provisions should Client determine that there has been unauthorized access using the Services.

GENERAL PROVISIONS

This Agreement is governed by the laws of the State of California, without regard to its choice of law statutes. Any disputes must be brought in the U.S. District Court for the Southern District of California, located in San Diego, California. The United Nations Convention on the International Sale of Goods is disclaimed. The parties agree that venue and jurisdiction is proper in this court, and agree not to contest notice from this court. EACH PARTY WAIVES ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WAY RISING OUT OF, OR RELATED TO, THIS SERVICES AGREEMENT. The parties further agree that the pricing and terms of this Services Agreement were made in reliance upon agreement to this paragraph.

Waiver. Except as expressly provided herein, this Services Agreement, including any other contracts incorporated by reference, may only be amended as set out in this Services Agreement or by the parties in a written amendment. If one party fails to exercise, or delays exercising, any right, remedy or power set out in this Services Agreement, this shall not operate as a waiver of that right, remedy or power, whether under this Services Agreement or at law or equity.

Assignment. This Services Agreement is binding on, and shall inure to the benefit of, the respective parties. It may be assigned by either party with the following exceptions: you may not assign this Services Agreement to a competitor of ours; and neither party may assign the Services Agreement to an entity having little or no assets in a direct, or indirect, attempt to avoid responsibility or liability for this Services Agreement.

Any provision in this Services Agreement that is held to be illegal or unenforceable in any jurisdiction shall be effective only up to the extent of such illegality or unenforceability, if possible, and shall not invalidate the remaining provisions of the paragraph or this Services Agreement. To the largest extent possible, the illegal or unenforceable provision shall be restated to reflect the parties’ intent.

Entire Agreement. This Services Agreement, and any contract incorporated by reference, states the entire agreement between the parties and supersedes all previous proposals, negotiations and other written or oral communications between the parties with respect to the subject matter stated in them.

Force Majeure. Company shall not be deemed to be in default of this Services Agreement, or to have breached any of its provisions, as a result of a delay, failure in performance, or interruption in the Services which result, either directly or indirectly, from: acts of god, acts of civil or military authority, civil disturbance, war, strikes, fire, laws, regulations, governmental acts, failure of telecommunication facilities or any other circumstances beyond Company’s reasonable control. Client’s sole and exclusive remedy for a failure of, or delay in, the Services is this Agreement.

Third Party Beneficiaries; Relationships. There are no third party beneficiaries to this Services Agreement. Should an End User claim to be a third party beneficiary of this Services Agreement, Client agrees to indemnify Company for any claims made against Company by your End User. The parties to this Services Agreement are independent contractors. Neither party has the authority to make any representations, claims or warranties of any kind on behalf of the other party, or on behalf of that party’s affiliates, agents, subcontractors, licensors or third-party suppliers.

Notices. Notices shall be effective when delivered, as indicated by a delivery date, or, in the case of notices delivered by post, five business days after being mailed to the designated address by first class mail. Notices to Client shall be made to the address set out in our customer record. Client expressly agrees to keep this address updated and be responsible for the consequences of failing to do so. Notices to Company shall be delivered to: accounts@xd3v.com, or by post to: XD3V, 529 Market St., Suite 3B, San Diego, CA 92101.

The following sections shall survive termination or expiration of this Services Agreement: II(i), VI, VIII, IX, XII(a), (c), (d), (e), (g), (h), (i), XIII

INDEMNIFICATION

Client shall indemnify and hold Company harmless from and against any and all claims, judgments, awards, costs, expenses, damages and liabilities (including reasonable attorney fees) of whatsoever kind and nature that may be asserted, granted or imposed against Company directly or indirectly arising from or in connection with Client's marketing or support services of the product or services or the unauthorized representation of the product and services or any breach of this Agreement by Client.