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Terms of Service (TOS)

These Terms of Service (this "Agreement") governs your purchase and use of all Apodigm, Inc. services. You must register and accept the terms of this Agreement in order to use the Services. BY CLICKING ON THE "I ACCEPT" BUTTON BELOW, AND/OR REGISTERING FOR AND USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT AS WELL AS ALL POLICIES AND GUIDELINES, WHICH ARE INCORPORATED HEREIN. Apodigm may modify any of the terms and conditions contained in this Agreement, at any time in its sole discretion. Any modifications are effective upon posting of the revisions on the Apodigm web site. Your continued use of the Services following Apodigm'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 Apodigm of your termination of this Agreement in the manner described below.

Term and Payment for Services.

Term. This Agreement becomes effective on the date services commence. The initial term of the agreement is for thirty day, and the agreement bill 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 Apodigm with written notice of termination at least 30 days before the end of the Initial Term or Renewal Term, whichever is then applicable.

Termination. This Agreement may be terminated: (i) by you or Apodigm, without cause, by giving the other party 30 days prior written notice; (ii) by Apodigm in the event of nonpayment by you as provided below; and (iii) by Apodigm, at any time, without notice, if, in Apodigm's sole judgment, you are in violation of any terms or conditions of the Agreement. If you terminate this Agreement, or if Apodigm 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 Apodigm under this Agreement.

Charges. You will pay all charges for your use of the Services at the then current Apodigm 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 Apodigm's net income. Apodigm has the right to change the price of the services to reflect a change in the cost of the service, or other reasons. In case of price change, Apodigm will send a 30 day advanced notice by e-mail only.

Payment. Payment for all charges must be paid by the first day of the applicable term or renewal term of this Agreement. If you pay by monthly draft of your credit card, you must notify Apodigm 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 is needed for Apodigm to charge 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 Apodigm to suspend its performance and terminate this Agreement. You are responsible for any costs Apodigm 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.

Refund and Disputes. All payments to Apodigm 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 Apodigm's sole discretion is a valid charge under the provisions of this Agreement, you agree to pay Apodigm an "Investigation Fee" of $100.00.

Acceptable Use Policies

Acceptable Use Policy. This Agreement governs the general policies and procedures for use of the services. Apodigm reserves the right to refuse service to any individual, company or corporation regardless of the policies described in the Agreement. The Agreement is posted on the site at (or such other location as Apodigm may specify) and may be updated from time to time. BY USING THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF THE AGREEMENT AND ANY MODIFICATIONS TO THE TERMS. APODIGM MAY TERMINATE YOUR ACCOUNT WITHOUT NOTICE FOR ANY VIOLATION OF THE AGREEMENT.

Excluded Services. Apodigm will not provide services and will terminate existing services immediately without compensation if the customer's web site is involved in any illegal, irresponsible, or disruptive use of the Internet, including, but not limited to, the following:

adult pornographic sites
copyrights violation
pirated software ("warez")
pirated music and web sites
unsolicited commercial email ("spam")
material which encourages the commission of a crime;
material which tends to incite violence;
material which tends to degrade any person or group based on sex, nationality, religion, color, age, marital status, sexual orientation, disability or political affiliation.

Any conduct that constitutes harassment, fraud, stalking, abuse, or a violation of federal export restriction in connection with use of Apodigm services or products is prohibited. Using the Apodigm network to solicit the performance of any illegal activity is also prohibited, even if the activity itself is not performed. In addition, knowingly receiving or downloading a file that cannot be legally distributed, even without the act of distribution, is prohibited. Illegal content is that which violates any law, statute, treaty, regulation, or lawful order. This includes, but is not limited to: obscene material; defamatory, fraudulent or deceptive statements; threatening, intimidating or harassing statements, or material which violates the privacy rights or property rights of others (copyrights or trademarks, for example). For purposes of this policy, "material" refers to all forms of communications including narrative descriptions, graphics (including photographs, illustrations, images, drawings, logos), executable programs, video recordings, and audio recordings.

Copyright Infringement - Software Piracy Policy The Apodigm network may only be used for lawful purposes. Transmission, distribution, or storage of any information, data or material in violation of United States or state regulation or law, or by the common law, is prohibited. This includes, but is not limited to, material protected by copyright, trademark, trade secret, or other intellectual property rights. Making unauthorized copies of software is a violation of the law, no matter how many copies you are making. If you copy, distribute or install the software in ways that the license does not allow, you are violating federal copyright law. If caught with pirated software, you or your company may be liable under both civil and criminal law, and you may be fined up to $250,000 and/or receive up to 5 years in jail. In compliance with the Digital Millenium Copyright Act (the "DMCA"), please send DMCA notifications of claimed copyright infringements to abuse@Apodigm.com. Apodigm will cooperate fully with any civil and/or criminal litigation arising from the violation of this policy.

Child Pornography on the Internet Apodigm's policy on child pornography is zero tolerance. Apodigm will cooperate fully with any criminal investigation into a Customer's violation of the Child Protection Act of 1984 concerning child pornography. Customers are liable for illegal material posted under their hosting or email account. According to the Child Protection Act, child pornography includes photographs, films, video or any other type of visual presentation that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years or any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years. Violations of the Child Protection Act may be reported to the U.S. Customs Agency at 1-800-BEALERT.

Adult Content on the Internet By accepting this Agreement, you agree not to display any material containing nudity or pornographic material of any kind. Apodigm will provide notification and will inform any customers in writing of improper materials on our servers. However, Apodigm reserves the right to disconnect any customers immediately.

Unsolicited Commercial E-mail - Spam Apodigm maintains a ZERO tolerance policy in regards to Unsolicited Commercial E-mail (UCE) or SPAM. Apodigm does not tolerate spam mailings and any account that is used to send such will be terminated without notice. Apodigm will not host, or permit hosting of, sites or information that is advertised by UCE from other networks. An electronic message is considered UCE IF: (1) the recipient's personal identity and context are irrelevant because the message is equally applicable to many other potential recipients; AND (2) the recipient has not verifiably granted deliberate, explicit, and still-revocable permission for it to be sent; AND (3) the transmission and reception of the message appears to the recipient to give a disproportionate benefit to the sender.

You may not use your account to send unsolicited bulk or commercial messages ("spam"). This includes, but is not limited to, bulk mailing of commercial advertising, informational announcements, charity requests, petitions for signatures, and political or religious tracts. Such messages may only be sent to those who have explicitly requested it. This includes both commercial advertisements and informational messages sent to recipients via electronic mail (email) as well as off-topic messages posted in Usenet discussion groups where the recipient has not requested or invited the message. Violation of Apodigm's SPAM policy may be reported to abuse@Apodigm.com

EMail Lists (Bulk Email) Mailing lists must be true opt-in mailing lists. Before sending any email to a listed user, a confirmation email, with a tracking number, must be sent to the new subscriber, to which they must respond with a confirmation that they wish to be added to the list. You must keep these confirmations on file, so that in the case that a spam complaint is made against you, you have proof that the user did indeed opt-in. In addition, you must provide at least one easy way to opt out; see the MAPS guidelines (http://mail-abuse.org/rbl/manage.html) for details. Opt-out requests must be honored immediately.

Internet Relay Chat - IRC Apodigm does not allow the use of IRC on the Apodigm network. This includes, but is not limited to, the use of IRC clients, server software, bots or anything related to IRC. Violators' accounts will be suspended. Customers are allowed to use java and PHP based chat software only in combination with their website.

Network Intensive Applications Apodigm accounts operate on shared resources. Excessive use or abuse of these shared network and computing resources by one customer may have a negative impact on all other customers. Misuse of network resources in a manner which impairs network performance is prohibited by this Agreement and may result in termination of your account. You are prohibited from excessive consumption of resources, including CPU time, memory, disk space and session time. You may not use resource-intensive programs which negatively impact other customers or the performance of Apodigm systems or Hosting. Accordingly, you may not use network-intensive programs, such as peer-to-peer or audio/video streaming applications, which negatively impact other customers or the performance of Apodigm systems or networks. Apodigm reserves the right to terminate or limit such activities.

Use of Services.

Bandwidth and Disk UsageYou agree that use of the services under this Agreement will not exceed the bandwidth and storage usage limits set out in the service description. If you use any bandwidth or storage space in excess of the agreed amount per month, you agree to pay the associated additional charges.

Account sharing. Account sharing is only permitted when used in conjunction with hosting plans. Account sharing is not allowed with any other services. Apodigm will terminate immediately and without compensation accounts, which share the web space with others or subdivide and resell the web space. Subdivision of the web space into two or more web sites is only allowed for customers who have purchased either the "add-on" domain service or the "parked" domain service. Customers must pay for these optional features before implementing the second website. Customers are allowed to use unlimited subdomains for additional websites only if the additional subdomains reside in a domain name owned by the customer and subscribed for Apodigm web hosting service.

Domain Names. Upon 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. Apodigm 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 Apodigm on your behalf, a handling fee will be charged. New webhosting accounts which involve the transfer of a domain from another provider to Apodigm will require a minimum of seven (7) days to be set up and entered into our DNS servers. Due to the unpredictable nature of the transfer process, no guarantees are made regarding the amount of time a specific transfer may actually take. If the transfer of the domain is done by Apodigm on your behalf, a handling fee will be charged. If you cancel service during the transfer period for any reason, all charges are considered earned.

Security. You 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, Apodigm will shut it down immediately.System And Network Security Violations of system or network security are prohibited, and may result in criminal and civil liability. Apodigm may investigate incidents involving such violations and may involve and will cooperate with law enforcement if a criminal violation is suspected. Violators of the policy are responsible, without limitations, for the cost of labor to clean up and correct any damage done to the operation of the network and business operations supported by the network, and to respond to complaints incurred by Apodigm. You will also pay any charges resulting from the cost to correct security breaches affecting Apodigm or any of its other customers. You are responsible for any misuse of your account, even if the inappropriate activity was committed by a friend, family member, guest, visitor or employee. Therefore, you must take steps to ensure that others do not gain access to your account. In addition, you may not use your account to breach security of another account or attempt to gain unauthorized access to another network or server. Examples of system or network security violations include, without limitation, the following:

Unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network.
Unauthorized monitoring of data or traffic on any network or system without express authorization of the owner of the system or network.
Interference with service to any user, host or network including, without limitation, mailbombing, flooding, deliberate attempts to overload a system and broadcast attacks.
Forging of any TCP-IP packet header or any part of the header information in an e-mail or a newsgroup posting.
High-risk services, which are services which tend to attract denial of service attacks, are strictly prohibited. This includes, but is not limited to, IRC related services and selling of shell accounts.
Attacking or attempting to gain unauthorized access to servers and services that belong to Apodigm or its customers (i.e. computer hacking).
Participating in behavior which result in reprisals that adversely effect the Apodigm network or other customers' access to the Apodigm network.

Denial of Services, DDoS, Smurf and other service attacks started against your web site will effect the entire population of the Apodigm Network, therefore your site will be subject to immediate termination of your account.

Intellectual Property Rights You warrant, represent, and covenant to Apodigm 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 (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 Numbers. Apodigm will not assign unique IP addresses to customers unless it is required for the service - including SSL Certificate enabled websites. For those services that require a unique IP address, Apodigm will contract an IP address on your behalf from our Internet Service Provider (ISP). The ISP will maintain and control ownership of all Internet protocol (" IP ") numbers and addresses that Apodigm may assign to you. Apodigm may, in its sole discretion, change or remove any and all IP numbers and addresses.

Third Party Products. Apodigm may provide you access to other third party software and/or services ("Third Party Products ") through reseller relationships Apodigm has established with 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 Apodigm and not by the Third Party Vendor. Apodigm makes no 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 APODIGM, 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 LAW, APODIGM WILL NOT 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 Apodigm 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 law.

Enforcement Actions. Apodigm 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 Apodigm your server is the source or target of any violation of the Agreement or for any other reason which Apodigm 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 Apodigm to monitor or exert editorial control over the information made available for distribution via its services. If Apodigm takes corrective action because of a possible violation, Apodigm will not refund to you any fees you paid in advance of the corrective action.

Disclosure Rights. The Agreement specifically prohibits the use of our service for illegal activities. Therefore, you agree that Apodigm 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. Security violations may be reported directly to the FBI's Infrastructure Protection & Computer Intrusion Squad at http://www.fbi.gov/programs/ipcis/ipcis.htm. Apodigm will cooperate fully with any civil and/or criminal litigation arising from the violation of this Agreement. In addition, Apodigm shall have the right to terminate all service set forth in this Agreement.

Disclaimed Warranties. Apodigm exercises no control over, and accepts no responsibility for, the content of the information passing through Apodigm'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. APODIGM 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. APODIGM DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.

Limitation and Exclusion of Liability.

Limitations. NEITHER APODIGM NOR ITS SUPPLIERS WILL BE LIABLE 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 APODIGM NOR ITS SUPPLIERS WILL BE LIABLE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF APODIGM HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES. ACCORDINGLY, YOU RELEASE APODIGM AND ITS SUPPLIERS FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIMS.

Interruption of Service. Apodigm and its suppliers are not liable for any temporary delay, outages or interruptions of the services. Further, Apodigm 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).

Indemnification. In agreeing to this Agreement, you agree to indemnify, defend and hold harmless Apodigm, its employees, directors, partners, representatives and affiliates, for any violation by you or your customers of this Agreement that results either in loss to Apodigm or the bringing of any claim against Apodigm by any third-party. For example, if Apodigm is sued because of your or your customer's activity related to the Services, you will pay any damages awarded against Apodigm, its employees, directors, partners, representatives and affiliates, plus all costs and attorney's fees.

MISCELLANEOUS PROVISIONS.

Confidentiality The parties each agree that all Confidential Information (as defined below) communicated to it by the other is done so in confidence and will be used only for the purposes of this Agreement and will not be used to compete with the other party or disclosed to any third party without the prior written consent of the other party except as permitted under this Agreement. "Confidential Information" means all information in any form, including, without limitation, printed or verbal communications and information stored in printed, optical or electromagnetic format, which relates to the services; or computer, data processing or electronic commerce programs and software; electronic data processing applications, routines, subroutines, techniques or systems; information which incorporates or is based upon proprietary information of either party; or information concerning business or financial affairs, product pricing, financial conditions or strategies, marketing, technical systems of either party; or any information concerning customers or vendors of either party; or any data exchange between a party and any customers or vendors. Exceptions to Confidential Information include (1) information in the public domain; (2) information developed independently by a party without reference to information disclosed under this Agreement; or (3) information received from a third party without restriction and/or breach of this or a similar Agreement. It is not a violation of this provision to disclose Confidential Information in compliance with any legal, accounting or regulatory requirement beyond the control of either Party or, but in such case, prior to disclosure, the disclosing Party shall give written notice to the other Party to permit that Party an opportunity to challenge such disclosure. If either Party is subpoenaed, such Party shall give written notice to the other Party to permit that Party an opportunity to challenge the disclosure of Confidential Information. Upon the termination of this Agreement and upon written request of the disclosing Party, each Party shall promptly return all Confidential Information of the other Party. This provision shall survive the termination of this Agreement for two (2) years

Apodigm 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 TEXAS. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE THE STATE AND FEDERAL COURTS IN TEXAS, 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 any rights or delegate any duties under this Agreement either in whole or in part without the prior written consent of Apodigm, and any attempted assignment or delegation without such consent will be void. Apodigm may assign this Agreement in whole or part. Apodigm 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 Apodigm are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between you and Apodigm. 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.

Survival. All 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.

//Revision: 1.0 Updated April 12, 2004//