This Service Agreement for Data Storage and Transfer (Agreement) is between RS (Remedysoft, Inc.) of 555 N. El Camino Real, Suite A192, San Clemente, CA 92672, and the party specified in the application / ordering form (Client).

WHEREAS, RS. is an information provider connected to the Internet. RS offers data storage (Web Hosting) and transfer services over the Internet through access to its collection of computer and network systems, hereinafter collectively referred to as Web Servers,

WHEREAS, Client seeks to utilize RS's services for Client's own purposes;

WHEREAS, the parties acknowledge that the Internet is neither owned nor controlled by any one entity; as a result, RS expressly disclaims any and all representations, warranties or guaranties that any given reader shall be able to access RS's server at any given time. RS represents that it shall make every good faith effort to ensure that its Web Servers are available to as many viewers as possible and with as minimal interruption of service as possible; nevertheless, RS cannot and does not warrant that the RS Web Servers are free of errors and inaccuracies, that use of RS's Web Servers will be satisfactory or uninterrupted or that the results obtained from such use will be adequate for the purposes intended by Client.

WHEREAS, the Client expressly warrants that he/she has authority to enter into this Agreement on behalf of the Client;

NOW THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows: 

1. Services

   1. Web Hosting. Pursuant to the terms of this Agreement, the Web Hosting Plan selected by Client or the Web customized web hosting plan configured for the client, RS agrees to provide Client with: (i) space on a server ("Web Hosting") to host a site on the Internet ("Web Site"), (ii) (at RS’s discretion) a license to use the C-Panel Control Panel and other proprietary software ("Software"), and (iii) various other services as more specifically set forth in Client’s Plan (collectively, "Services"). Client hereby agrees that RS is responsible only for providing the Services set forth in Client’s Plan and this Agreement, and RS is not responsible for providing any other services or tasks.
   2. Availability of Web Site. The Web Site shall be generally accessible to third parties via the Internet twenty-four hours a day, seven days a week, except for scheduled maintenance and required repairs, and except for any loss or interruption of Services due to causes beyond the control of RS or which are not reasonably foreseeable by RS, including but not limited to interruption or failure of telecommunication or digital transmission links and Internet slow-downs or failures. PLEASE SEE SECTION 3.1 FOR 99% UPTIME GUARANTEE.
      
      

2. Term and Renewal

   
   
   1. This Agreement will begin upon commencement of service by RS and shall continue for the period of 1 year ("Initial Term"), unless earlier terminated according to the provisions of Section 7 below. This Agreement will continue automatically for additional terms equal to the Initial Term (each, a "Renewal Term") unless either party provides notice at least thirty (30) days prior to the end of the Initial Term or Renewal Term, as applicable, that it has elected not to renew the Agreement. For security reasons and the general protection of all clients, RS requires cancellation requests to be submitted in Client Area of our online billing system located at http://www.remedysoft.com/myaccount/clientarea.php.
      
      

3. Fees and Payment

   
   
   1. Fees. Client shall pay all fees according to the prices and terms listed in this Agreement and the Client’s Plan. The cost of the Initial Client’s Plan is billable in a single annual payment unless otherwise agreed in writing. Features may be enhanced or added to the plan that may increase the price, which will be billed at that time for the remainder of the initial term and recurring terms.
   2. Payments and Late Payment Charge. Payment for all Services and Set-Up Fees, if any, (as set forth in the Plan or requested by Client and agreed to by Remedysoft at an hourly rate of $135.00 per hour) shall be due and payable on receipt. This Agreement is for the entire Initial Term or applicable Renewal Term and Client is hereby obligated to pay the fees for the entire amount of the Plan. Client shall pay a late charge of 2% per month, or the maximum rate permitted by applicable law, whichever is less, on any unpaid amount for each calendar month or fraction thereof that payments are in arrears to RS. All fees that have not been timely paid may be sent by RS to a collection agency. Client agrees to be responsible for paying all costs of collection, including, but not limited to, reasonable attorney’s fees and, where lawful, collection agency fees.
   3. Credit Card. Client may pay fees using any credit card currently accepted by RS. Cards accepted may change at any time at RS's sole discretion. Credit Cards may be charged seven (7) days prior to the Payment Date to the Credit Card number given at the time of registration for the Plan. Payment by Credit Card includes the authorization to charge all future recurring fees and charges to the Credit Card on file with RS. If Client’s Credit Card is denied, for any reason, Client will be sent a notice by e-mail. If payment is not received by the Payment Date, RS may make one final attempt to charge Client’s Credit Card on or around the Payment Date. If payment is not secured by the Payment Date, Client will be sent a Suspension of Services e-mail which will grant Client fourteen (14) days to make payment. In the event Client initiates a charge back, RS may immediately suspend all Services to Client until such time as full payment is received in addition to a $55.00 charge back fee and $25.00 reactivation fee.
   4. Checks or Money Order. At RS's sole discretion, a client may pay fees by check or money order in U.S. dollars only. RS will not accept international checks in foreign currency. In the event a check is returned as unpayable, Client will be assessed a $50.00 returned check fee. If Client fails to pay all fees by the Payment Date, Client will be sent a suspension of Services e-mail which will grant Client fourteen (14) days to make payment.
   5. Pricing Disputes. Client must notify RS in writing of any disputed charges within 30 days of the date of the billing for such charges. If Client does not notify RS within that time period, Client has waived any right to dispute such amounts, either directly or indirectly or as a set-off, recoupment or defense in any action or efforts to collect amounts due to RS.
   6. Suspension of Services. Failure of Client to fully pay any fees when due may be deemed a material breach of this Agreement justifying suspension of the performance of Services to Client at RS’s sole option. Any such suspension of Services does not relieve Client from the obligation to pay all amounts due RS under this Agreement for the remainder of the Initial Term or the then applicable Renewal Term. In the event of a suspension of Services and upon a reactivation request by Client, Client shall pay RS a $50.00 reactivation fee in addition to full payment of the outstanding balance due. Reactivation of services will only be performed during RS’s regular business hours.
   7. Taxes. Fees are exclusive of any and all sales, use, value added, excise, transfer, privilege, duty and any other taxes or duties, whether international, national, state or local, however designated or assessed with respect to the Services provided under this Agreement; excluding, income taxes on profits which may be levied against RS.
      
      

4. Limited Warranties

   
   
   1. 99% Uptime Guarantee. Subject to the limitations contained herein, RS hereby warrants that the following services will have an average monthly uptime of no less than 99%. The month begins on the first day of each month and continues until the last day of that month. In the event of any loss or interruption of Services resulting in less than 99% uptime and which is due to (i) causes other than scheduled maintenance and required repairs, (ii) causes beyond the control of RS, or (iii) causes which are not reasonably foreseeable by RS, including, but not limited to, interruption or failure of telecommunication or digital transmission links and Internet slow-downs or failures, Client shall receive, and RS’s sole and exclusive liability for any loss or interruption of Services shall be, a credit equal to one month’s Services of the Client’s present Plan fees.
      
      

5. Client Obligations

   
   
   1. Client Content. Client shall provide all materials comprising the Web Site, including, but not limited to, any and all images, photographs, illustrations, graphics, audio clips, video clips or text (the "Client Content"), which shall be in a correct format (as specified by RS), including, but not limited to, HTML.2 format ("Server Ready"). Client is solely responsible for the content of any postings, data or transmissions using the Services, or any other use of the Services by Client or by any person or entity Client permits to access the Services. RS reserves the right, in its sole discretion, to exclude or remove from the Web Site any Client Content for any of the following reasons: (i) Client Content is not Server Ready, (ii) CGI scripts or programs consume an unreasonable amount of Central Processing Unit ("CPU") usage, Random Access Memory ("RAM"), or other system resources, (iii) RS has received a significant number of complaints regarding Client’s failure to be reasonably accessible to its customers or timely fill orders, (iv) Client has become the subject of a government complaint or investigation, (v) Client runs or executes JAVA Servlets on the Web Hosting, or (vi) any other reason which may violate or infringe any law or third party rights or which otherwise may potentially expose RS to civil or criminal liability or public ridicule, provided that such right shall not place an obligation on RS to monitor or exert editorial control over the Web Site. PLEASE SEE SECTION 7.2 OF THIS AGREEMENT FOR SPECIFIC TERMINATION FEES AND PROCEDURES FOR CLIENT’S VIOLATION OF THIS SECTION.
   2. Representations and Warranties. Client represents and warrants that: (i) Client has the power and authority to perform its obligations hereunder and the Agreement constitutes a valid and binding obligation enforceable against Client in accordance with its terms, (ii) Client has the requisite level of knowledge in the use of Internet languages, protocols and software to utilize the Services provided by RS, (iii) Client has secured all required authorization(s) necessary for hypertext links to third party web sites, (iv) Client holds all necessary licenses from the required jurisdictions to engage in the advertising and sale of any goods and services which may be offered on the Web Site, (v) Client Content does not and will not contain any content, materials, advertising or services that are inaccurate or that infringe on or violate any applicable law, regulation or right of a third party, including, without limitation, export laws, or any proprietary, contract, moral, or privacy right or any other third party right, and (vi) Client owns the Client Content or otherwise has the right to place the Client Content on the Web Site. PLEASE SEE SECTION 7.2 OF THIS AGREEMENT FOR SPECIFIC TERMINATION FEES AND PROCEDURES FOR CLIENT’S VIOLATION OF THIS SECTION.
   3. Acceptable Use of Web Hosting. Client agrees to comply with all laws, rules, regulations and RS’s Acceptable Use Policy ("AUP")9+. The AUP is incorporated herein by this reference and may be updated from time to time by RS in its sole discretion. Client acknowledges that it has read and understands the AUP and that Client has an obligation to periodically review the AUP from time to time. In addition to those activities prohibited in the AUP, Client agrees not to utilize the Services for any activities that: (i) constitute or encourage a violation of any applicable law or regulation, including but not limited to the sale of illegal goods or the violation of export control or obscenity laws, (ii) defame, impersonate or invade the privacy of any third party or entity, (iii) infringe the rights of any third party, including but not limited to the intellectual property, business, contractual or fiduciary rights of others, (iv) involve the display, sale, distribution or creation of any pornographic, obscene or otherwise offensive goods, services, material or ideas or promote violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age, (v) modify any RS copyright notices or scripts without obtaining RS’s prior written consent, (vi) provide mirroring service for other web sites, (vii) the primary purpose is non-http compatible file distribution, including but not limited to the distribution of the following file types: .arj, .mp3, .exe, .tar, .rar, or .zip, (viii) are in any way connected with trolling, mailbombing, IRC Bots, Game-emulators, ROMs or the transmission of "junk mail," "spam," the unsolicited mass distribution of e-mail or with any unethical marketing practices, (ix) maintain or provide an image archive or collection for display, (x) use an email box exclusively as a storage space for data, which includes a mailbox exceeding 30 MB, and (xi) the primary website theme is related to pornographic materials, fads, "Top" sites, or otherwise "trendy" websites. In the event any provisions contained in this Agreement conflicts with any terms, conditions or clauses contained in the AUP, the provisions of this Agreement shall govern. PLEASE SEE SECTION 7.2 OF THIS AGREEMENT FOR SPECIFIC TERMINATION FEES AND PROCEDURES FOR CLIENT’S VIOLATION OF THIS SECTION.
   4. Mailing Lists. RS permits Client to send mailings to subscribers of Client’s own mailing list. Such mailings must have explicit instructions to the recipient on how to remove his/her name from the list, and all requests to do so must be honored immediately. Client agrees not to send mailings to lists provided by an outside agency or individual. Client further agrees not to provide mailing list services to others. Due to the nature of the Web Hosting, RS requests that all mailing lists be sent during the hours of 1:00 a.m. and 5:00 a.m., Pacific Standard Time. RS reserves the right to terminate Client’s mailing program, whether provided by RS or not, immediately and without notification to Client if said list causes a problem, in RS’s sole discretion, with the e-mail services of other clients. RS also reserves the right to forbid Client from utilizing any mail-sending program that jeopardizes the mail services of other clients. Due to the consumption of system resources and overloading of the e-mail server, RS forbids the use of Gossamer Links program by any of its clients. PLEASE SEE SECTION 7.2 OF THIS AGREEMENT FOR SPECIFIC TERMINATION FEES AND PROCEDURES FOR CLIENT’S VIOLATION OF THIS SECTION.
      
      

6. License and Proprietary Rights

   
   
   1. Software License. During the Initial Term and any applicable Renewal Term, RS grants Client a nontransferable, nonexclusive limited license to use the Software, in object code form only, solely for purposes of using the Services on the Web Hosting. To the extent such Software belongs to a third party, RS only grants such rights as it is able to under an agreement with the applicable third party. CLIENT MAY NOT USE WEB PAGES OR PARTS OF WEB PAGES GENERATED BY MEANS OF THE SOFTWARE ON ANY SERVER OTHER THAN THE Web Hosting.
   2. Software License Restrictions. Client agrees that it will not, directly or indirectly (and it will not allow others to):
   3. Copy the Software, except as is necessary to install on Hardware and for internal, archival purposes. In the event Client makes any copies of the Software, Client shall reproduce all proprietary notices on such copies;
   4. Reverse engineer, decompile, dissemble, modify or otherwise attempt to derive source code from the Software;
   5. Sell, lease, license, transfer, give possession of, or sublicense the Software or the documentation to others;
   6. Write or develop any derivative or other software programs, based, in whole or in part, upon the Software.
   7. Proprietary Rights. Client shall not have any right, title, or interest in the Web Hosting, Software, Hardware, documentation, or any copyrights, patents, trademarks, trade secrets and any other proprietary rights embodied or used in connection therewith, except for the limited license provided in Section 6.1.
   8. Proprietary Rights of Client. As between Client and RS, Client Content shall remain the sole and exclusive property of Client, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights. Client hereby grants to RS a non-exclusive, worldwide, royalty-free license for the Initial Term and any Renewal Term to edit, modify, adapt, translate, exhibit, publish, transmit, participate in the transfer of, reproduce, create derivative works from, distribute, perform, display, and otherwise use Client Content as necessary to render the Services to Client under this Agreement.
      
      

7. Termination of Agreement

   
   
   1. Termination upon Breach or Insolvency. Subject to Section 7.3 below, this Agreement may be terminated by either party upon written notice, (i) if the other party breaches any obligation hereunder and the breaching party fails to cure such breach within thirty (30) days after such notice, or (ii) if the other party is the subject of a voluntary or involuntary bankruptcy, insolvency, reorganization or liquidation proceeding, makes an assignment for the benefit of creditors or admits in writing its inability to pay debts when due. Notwithstanding the foregoing, this Agreement may be terminated by RS at any time upon written notice to Client if Client fails to make any payment within five (5) days after such payment was due.
   2. Termination for Client’s Breach of Sections 5.1, 5.2, 5.3, 5.4. Notwithstanding Section 7.1 above, RS may immediately terminate this Agreement and remove Client’s Web Site from the Web Hosting if it is determined, in RS’s sole discretion, that Client has breached Sections 5.1, 5.2, 5.3, or 5.4 of the Agreement. Any termination under this Section 7.2 shall take effect immediately and Client expressly agrees that it: (i) shall not have any opportunity to cure, (ii) shall not be entitled to a refund of any fees paid to RS, and (iii) shall promptly pay a $250.00 clean-up / disconnection fee.
   3. Rights and Remedies upon Termination. In the event either party terminates the Agreement pursuant to Sections 7.1 or 7.2, RS shall be entitled to immediately receive payment for all Services incurred through the date of termination. In addition, it is agreed to that, if Client is the breaching party, then RS will suffer damages that would be difficult to ascertain. Therefore, Client agrees to pay RS all amounts due hereunder for the remainder of the Initial Term or then applicable Renewal Term as liquidated damages and not as a penalty. Such liquidated damages shall be in addition to all other rights and remedies available to RS in law and in equity which may be granted by a court of competent jurisdiction.
      
      

8. Warranty Disclaimer; Limitation on Liability & Indemnity

   
   
   1. WARRANTY DISCLAIMER. Except as expressly set forth in section 3 of this agreement, all services are provided on an "as is" basis. RS does not make, and hereby disclaims, any and all other express and/or implied warranties, including, but not limited to, warranties of merchantability, fitness for a particular purpose, noninfringement and title, and any warranties arising from a course of dealing, usage, or trade practice. RS does not warrant that the services will be uninterrupted, error-free or completely secure.
   2. LIMITATION ON LIABILITY. In no event shall RS be liable to client, client’s users or any other third party for any indirect, consequential, special, incidental, punitive or noncontractual damages or lost profits arising out of or related to this agreement or any services, even if RS has been advised of the possibility thereof. RS’s liability, if any, to client or to any third party hereunder shall in no event exceed the total after tax profits earned by RRS under this agreement in the last twelve months. The parties acknowledge that RS has set its prices and entered into this agreement in reliance upon the limitations of liability and the disclaimers of warranties set forth herein, and that the same form an essential basis of the bargain between the parties. The parties agree that the limitation and exclusions of liability will survive and apply even if found to have failed of their essential purpose.
   4. In no event shall RS Be liable for failure or delay in performing its obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the services.
   5. Indemnity. Client will indemnify, defend and hold RS, and its officers, directors, employees, agents and affiliates (each, an "Indemnified Party") harmless from and against any and all costs, liabilities, losses and expenses, including, but not limited to, reasonable attorneys’ fees (collectively, "Losses") resulting from or arising out of any claim, suit, action, arbitration or proceeding (each, an "Action") brought by a third party against Indemnified Party relating to: (i) a breach or alleged breach by Client of any of its representations, warranties, covenants or obligations hereunder, (ii) infringement or misappropriation of any intellectual property rights, including but not limited to rights of privacy, patent, copyright, trade secret, trademark rights and/or licenses, (iii) injury caused by any negligence or willful misconduct of Client, or (iv) use of the Services, including use of the Services without the consent of Client.
      
      

9. General Provisions

   
   
   1. Privacy Policy. In an effort to address Client’s privacy concerns, RS has instituted a privacy policy ("Privacy Policy") which may be found on the Remedysoft.com website and is incorporated herein by this reference. RS reserves the right to change the Privacy Policy at any time. Client acknowledges that it has read and understands the Privacy Policy and that Client has an obligation to periodically review the Privacy Policy from time to time. In the event any provisions contained in this Agreement conflicts with any terms, conditions or clauses contained in the Privacy Policy, the provisions of this Agreement shall govern.
   2. Independent Contractor. RS and Client are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between RS and Client. Neither RS nor Client will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
   3. Binding Nature of Agreement; Assignment. Except as otherwise provided herein, all the terms and provisions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns, except that Client may not assign or transfer its rights or obligations under or interest in this Agreement without first obtaining the prior written consent of RS. RS may, in its sole discretion, assign its obligations under this Agreement in connection with any merger, sale of all or substantially all of the assets of RS.
   4. No Lease. This Agreement is a service agreement and is not intended to and will not constitute a lease for any real or personal property. Client acknowledges and agrees that (i) it has been granted only a license to use the Services and equipment provided by RS in accordance with this Agreement, (ii) Client has not been granted any real property interest in any equipment, and (iii) Client has no rights as a tenant or otherwise under any real property or landlord/tenant laws, regulations or ordinances.
   5. No Third-Party Beneficiaries. The terms and provisions of this Agreement are intended solely for the benefit of each party hereto and their respective successors and permitted assigns, and it is not the intention of the parties to confer third-party beneficiary rights upon any other person.
   6. Attorneys’ Fees. In the event of any litigation or arbitration between the parties hereto arising from or related to a party’s nonperformance or breach of this Agreement, the prevailing party in any such action shall be entitled to reimbursement of all costs and expenses incurred in connection with such litigation or arbitration, including without limitation, reasonable attorney’s fees.
   7. Alteration. No alteration, modification, or change of this Agreement shall be valid unless made in writing and executed by the parties hereto.
   8. Governing Law; Venue. This Agreement shall be governed by and shall be construed, interpreted and enforced in accordance with the laws of the State of California, without reference to principles of conflicts of law. The parties agree that the sole and exclusive venue for any and all disputes arising hereunder shall be in any trial court located in Orange County, California. The parties hereby irrevocably consent to the jurisdiction of the appropriate court in Orange County, California, USA.
   9. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. The parties agree that this Agreement, the Service Order and Service Order Change Forms may be delivered by any party by electronic or facsimile signature.
   10. Severability. Each provision of this Agreement shall be treated as a separate and independent clause, and the unenforceability of any one clause shall in no way impair the enforceability of any of the other clauses herein.
   11. Entire Agreement. This Agreement, along with the AUP, Privacy Policy sand Client’s Plan, shall be the entire agreement among the parties with respect to the transactions contemplated among them and, except as otherwise provided, supersede all previous negotiations, commitments, and writings.