Terms of Service

This Hosting Agreement (this “Agreement”) is between D5Hosting, LLC., a Network Service Provider formed under the laws of the State of California with its principal office at

East Lansing, Michigan (“D5Hosting”) and the person (individual or legal person) who signs, or accepts via electronic means, D5Hosting’s service order and set up form (the

“Order”) incorporating this Agreement by reference (“Customer”). This Agreement governs Customer’s use of D5Hosting’s hosting service.
Table of Contents

- Services
- Term
- Payments
- Law/AUP
- Customer Information
- Indemnification
- Disclaimer of Warranties
- Limitation of Damages
- Suspension of Services/Termination
- Request for Customer Information
- Back Up Copy
- Notices
- Force Majeure
- Miscellaneous

1. Services.

Subject to the terms of this Agreement, and contingent on Customer’s satisfaction of D5Hosting’s credit approval requirements, D5Hosting agrees to provide the hosting services

described in the Order for the fees stated in the Order.
2. Term.

The initial service term of the Agreement shall begin on the date that D5Hosting generates an e-mail message to Customer announcing the activation of the Customer’s account (the

“Service Commencement Date”) and shall continue for the first partial month of service plus the number of full calendar months stated in the Order (the “Initial Term”). Upon

expiration of the Initial Term, this Agreement shall automatically renew on a month to month basis (each a “Renewal Term”) unless D5Hosting or Customer provides the other with

written, or electronic, notice of non-renewal. The Initial Term and any Renewal Term may be referred to collectively in this Agreement as the “Term.”
3. Payments.

(a) Fees.

Fees are payable in advance of the first day of next billing cycle. Customer’s billing cycle shall be a calendar month or otherwise indicated on the Order. The first service fee

shall include a prorated portion of the monthly fee for the first partial month of service plus the fee for the first full billing cycle. D5Hosting may require payment in full

of the first fee before beginning service. If the Order provides for credit/debit card billing, Customer authorizes D5Hosting to bill subsequent fees to the credit/debit card on

or after the first day of each billing cycle during the Term of this Agreement; otherwise D5Hosting will invoice Customer via electronic mail to the Primary Customer Contact

listed on the Order. Invoiced fees may be issued on or before the 1st day of each billing cycle, and the fees shall be due on or before the 20th day of each billing cycle, but

in no event earlier than the first day of each billing cycle. If payment has not been received by the last day of the month for the next month of services, your servers will be

suspended on the last day of the month that you have paid. You will have 24 hours to provide payment in full. After 24 hours, your data will not be maintained.

Payments must be made in United States dollars. Customer is responsible for providing D5Hosting with changes to billing information (such as credit card expiration, change in

billing address) At its option, D5Hosting may accrue charges to be made to a credit/debit card until such charges exceed $10.00. D5Hosting may charge interest on overdue amounts

at the lesser of 1.5% per month or the maximum non-usurious rate under applicable law. D5Hosting may suspend the service without notice if payment for the service is overdue.

Fees not disputed within sixty (60) days of due date are conclusively deemed accurate. Customer agrees to pay D5Hosting’s reasonable reinstatement fee following a suspension of

service for non-payment, and to pay D5Hosting’s reasonable costs of collection of overdue amounts, including collection agency fees, attorney fees and court costs.

(b) Fee Increases. D5Hosting may increase its fees for services effective the first day of a Renewal Term by giving notice to Customer of the new fees at least forty five (45)

days prior to the beginning of the Renewal Term, and if Customer does not give a notice of non-renewal as provided in Section 2 above, the Customer shall be deemed to have

accepted the new fee for that Renewal Term and any subsequent Renewal Terms (unless the fees are increased in the same manner for a subsequent Renewal Term).

(c) Taxes. At D5Hosting’s request Customer shall remit to D5Hosting all sales, VAT or similar tax imposed on the provision of the services (but not in the nature of an income

tax on D5Hosting), regardless of whether D5Hosting fails to collect the tax at the time the related services are provided.

(d) Service Violation Fees. Customers which violate the Terms of Service or Acceptable Use Policy may be, at the sole discretion of D5Hosting, subject to an administrative fee

of up to $50 per incident. This fee shall be levied within 60 days of the actual violation.

(e) Additional Administrative Fees. Customers that have their assigned D5Hosting IP addresses placed on SPAM blacklists, or that cause other IP addresses within the D5Hosting

network to become blacklisted, may be assessed a $50 per blacklisted IP administrative fee.

Customer servers that are subjected to more than one IP null-route (resulting from network attacks) in any given month will be assessed a $15 administrative fee per null-route.

A null-route shall not be put in place unless the attack exceeds 500 Mbps or 50,000 packets per second in size or unless the attack negatively impacts the D5Hosting network.

Any abuse complaint received by D5Hosting in connection with services provided to or by Customer shall be administratively processed by D5Hosting and a copy provided to (or

notification of if complaint was not received in electronic form) Customer for appropriate handling. Customer is expected to take all necessary action to resolve the abuse

complaint within 24 hours of notification. At the sole discretion of D5Hosting, an administrative fee of up to $10 per complaint processed may be assessed.

(f) Early Termination. Customer acknowledges that the amount of the fee for the service is based on Customer’s agreement to pay the fee for the entire Initial Term, or Renewal

Term, as applicable. In the event D5Hosting terminates the Agreement for Customer’s breach of the Agreement in accordance with Section 9 (Termination), or Customer terminates

the service other than in accordance with Section 9 (Termination) for D5Hosting’s breach, the unpaid fees for each billing cycle remaining in the Initial Term or then-current

Renewal Term, as applicable, are due on the business day following termination of the Agreement.
4. Law/AUP.

Customer agrees to use the service in compliance with applicable law and D5Hosting’s Acceptable Use Policy posted at http://www.d5hosting.com/?p=acceptableUse (the “AUP”), which

is hereby incorporated by reference in this Agreement. Customer agrees that D5Hosting may, in its reasonable commercial judgment consistent with industry standards, amend the

AUP from time to time to further detail or describe reasonable restrictions and conditions on Customer’s use of the Services. Amendments to the AUP are effective on the earlier

of D5Hosting’s notice to Customer that an amendment has been made, or the first day of any Renewal Term that begins subsequent to the amendment. Customer agrees to cooperate

with D5Hosting’s reasonable investigation of any suspected violation of the AUP. In the event of a dispute between D5Hosting and Customer regarding the interpretation of the

AUP, D5Hosting’s commercially reasonable interpretation of the AUP shall govern.
5. Customer Information.

Customer represents and warrants to D5Hosting that the information he, she or it has provided and will provide to D5Hosting for purposes of establishing and maintaining the

service is accurate. If Customer is an individual, Customer represents and warrants to D5Hosting that he or she is at least 18 years of age. D5Hosting may rely on the

instructions of the person listed as the Primary Customer Contact on the Order with regard to Customer’s account until Customer has provided a written notice changing the

Primary Customer Contract.
6 Indemnification.

Customer agrees to indemnify and hold harmless D5Hosting, D5Hosting’s affiliates, and each of their respective officers, directors, agents, and employees from and against any

and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature

whatsoever (including reasonable attorneys fees) brought by a third party under any theory of legal liability arising out of or related to the actual or alleged use of

Customer’s services in violation of applicable law or the AUP by Customer or any person using Customer’s log on information, regardless of whether such person has been

authorized to use the services by Customer.
7. Disclaimer of Warranties.

D5Hosting DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW D5Hosting DISCLAIMS

ANY AND ALL WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL

SERVICES ARE PROVIDED ON AN “AS IS” BASIS.
8. Limitation of Damages.

NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, OR FOR DAMAGES THAT

COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE, ARISING IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILITY OF

SUCH DAMAGES.
NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF D5Hosting AND ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY OF

LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL BE A PAYMENT OF MONEY NOT TO EXCEED THE AMOUNT PAYABLE BY CUSTOMER FOR THREE MONTHS OF

SERVICE.
9. Suspension/Termination.

(a) Suspension/Termination of Service. Customer agrees that D5Hosting may suspend and/or terminate services to Customer without notice and without liability if: (i) D5Hosting

reasonably believes that the services are being used in violation of the AUP; (ii) Customer fails to cooperate with any reasonable investigation of any suspected violation of

the AUP; (iii) D5Hosting reasonably believes that the suspension of service is necessary to protect its network or its other customers; (iv) a chargeback, dispute, or reversal

of payment is initiated on any payment made to D5Hosting; or (v) as requested by a law enforcement or regulatory agency. Customer shall pay D5Hosting’s reasonable reinstatement

fee if service is reinstituted following a suspension of service under this subsection.

(b) Termination. The Agreement may be terminated by Customer prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability if

D5Hosting fails in a material way to provide the service in accordance with the terms of the Agreement and does not cure the failure within ten (10) days of Customer’s written

notice describing the failure in reasonable detail. The Agreement may be terminated by D5Hosting prior to the expiration of the Initial Term or any Renewal Term without further

notice and without liability as follows: (i) if Customer is overdue on the payment of any amount due under the Agreement; (ii) Customer materially violates any other provision

of the Agreement, including the AUP (in which case a $50 "Termination Fee" will be applied); (iii) if Customer violates Section 5 (Customer Information) of this Agreement.

Either party may terminate this agreement upon ten (10) days advance notice for any reason.

(c) Refunds. If an account is terminated and the termination results in a credit balance, a refund will be issued. Refunds shall be processed on the first of each month; unless

the first of the month falls on a weekend or a holiday, in which case refunds will be processed on the first subsequent business day. Refunds shall be made in full no later than

45 days after the account termination. D5Hosting may, at it's option, perform refunds prior to the first of the month.
10. Requests for Customer Information.

Customer agrees that D5Hosting may, without notice to Customer, (i) report to the appropriate authorities any conduct by Customer or any of Customer’s customers or end users

that D5Hosting believes violates applicable law, and (ii) provide any information that 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 regulatory agency or in response to a formal request in a civil action that on its face meets the requirements for such a request.
11. Back Up Copy.

Customer agrees to maintain a current copy of all content hosted by D5Hosting notwhithstanding any agreement by D5Hosting to provide back up services.
12. Changes to D5Hosting’s Network.

Upgrades and other changes in D5Hosting’s network, including, but not limited to changes in its software, hardware, and service providers, may affect the display or operation of

Customer’s hosted content and/or applications. D5Hosting reserves the right to change its network in its commercially reasonable discretion, and D5Hosting shall not be liable

for any resulting harm to Customer.
13. Notices.

Notices to D5Hosting under the Agreement shall be given via electronic mail to the e-mail address posted for customer support on http://www.d5hosting.com/. Notices to Customer

shall be given via electronic mail to the individual listed as the Primary Customer Contact on the Order. Notices are deemed received on the day transmitted, or if that day is

not a business day, on the first business day following the day delivered. Customer may change his, her or its notice address by a notice given in accordance with this Section.
14. Force Majeure.

D5Hosting shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond D5Hosting’s control, including,

without limitation, significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or

other organized labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.
15. Governing Law/Disputes.

The Agreement shall be governed by the laws of the State of California, exclusive of its choice of law principles, and the laws of the United States of America, as applicable.

The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THE

AGREEMENT SHALL BE THE STATE AND FEDERAL COURTS IN SANTA CLARA COUNTY, CALIFORNIA, AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS

THERETO.
16. Miscellaneous.

Each party acknowledges and agrees that the other party retains exclusive ownership and rights in its trademarks, service marks, trade secrets, inventions, copyrights, and other

intellectual property. Neither party may use the other party’s name or trade mark without the other party’s prior written consent. The parties intend for their relationship to

be that of independent contractors and not a partnership, joint venture, or employer/employee. Neither party will represent itself to be agent of the other. Each party

acknowledges that it has no power or authority to bind the other on any agreement and that it will not represent to any person that it has such power or authority. This

Agreement may be amended only by a formal written agreement signed, or accepted via electronic means, by both parties. The terms on Customer’s purchase order or other business

forms are not binding on D5Hosting unless they are expressly incorporated into a formal written agreement signed, or accepted via electronic means, by both parties. A party’s

failure or delay in enforcing any provision of the Agreement will not be deemed a waiver of that party’s rights with respect to that provision or any other provision of the

Agreement. A party’s waiver of any of its right under the Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence,

whether similar in nature or not. The captions in the Agreement are not part of the Agreement, but are for the convenience of the parties. The following provisions will survive

expiration or termination of the Agreement: Fees, indemnity obligations, provisions limiting liability and disclaiming warranties, provisions regarding ownership of intellectual

property, these miscellaneous provisions, and other provisions that by their nature are intended to survive termination of the Agreement. There are no third party beneficiaries

to the Agreement. Neither insurers nor the customers of resellers are third party beneficiaries to the Agreement. Customer may not transfer the Agreement without D5Hosting’s

prior written consent. D5Hosting’s approval for assignment is contingent on the assignee meeting D5Hosting’s credit approval criteria. D5Hosting may assign the Agreement in

whole or in part.

This Agreement together with the Order and AUP constitutes the complete and exclusive agreement between the parties regarding its subject matter and supersedes and replace any

prior understanding or communication, written or oral.