Connectria Managed Hosting -
Terms of Service

Last Updated: March 1, 2012

These Terms of Service apply only to solutions that are supported by Connectria’s Managed Hosting Services (which were formerly provided by REDPLAID Managed Hosting, LLC a division of Connectria Corporation). Solutions supported by Connectria’s Custom Hosting Services are addressed by a separate agreement).

1.    Defined Terms. As used in this Agreement, the following terms have the meaning ascribed to them below:

“Business Day” means Monday through Friday, 8:00 a.m. to 5:00 p.m., central U.S. time, excluding any day that banks in the United States are required or permitted to be closed.

“Customer Affiliate” means any person or entity that now or hereafter, directly or indirectly controls, is controlled by, or is under common control with, Customer. The term “control”, and its variations, for purposes of this definition, means the possession, direct or indirect, of the power to direct or cause the direction of the management of the subject entity, whether through the ownership of voting securities, by contract or otherwise.

“Connectria’s Designated Trade Secrets” means (a) Connectria’s unpublished margin and pricing data, (b) Connectria’s vendor pricing, terms and agreements, (c) Connectria’s audit and security reports including, without limitation all content of such reports and the “look and feel” of such reports, (d) Connectria’s server and network configuration designs, and (e) without limiting the generality of the foregoing, Connectria’s Managed Hosting Tools (as defined in Section 10.2 below).

“Connectria’s Trade Secrets” means, collectively, (a) Connectria’s Designated Trade Secrets, and (b) all other information that constitutes a trade secret of Connectria’s under applicable law.

“Managed Hosting Service” means the provision of any managed hosting service as described in any applicable Statement of Work, Order Form and/or Service Level Agreement.

“Order Form” means any one or more documents, each designated as an “Order Form”, that incorporate this Agreement by reference. For the avoidance of doubt, there may not be any Order Forms.

“Service Commencement Date” means the date Connectria contacts Customer and provides access codes and passwords for use in connection with the Managed Hosting Service.

“Service Level Agreement” means any one or more Connectria Service Level Agreements that are attached hereto or are otherwise incorporated by reference in, as applicable, the Statement of Work or Order Form.

“Statement of Work” any one or more documents, each designated as a “Statement of Work”, that incorporate this Agreement by reference. For the avoidance of doubt, there may not be any Statements of Work.

“Service” or “Services” means the Managed Hosting Service, any Additional Services (as defined in Section 2.2 below), and any other services provided by Connectria to Customer hereunder.

“Work Order” means any one or more documents, each designated as a “Work Order”, that incorporate this Agreement by reference. For the avoidance of doubt, there may not be any Work Orders.

2.    Services.

2.1    Managed Hosting Services. Subject to the terms and conditions of this Agreement, Connectria agrees to provide the Managed Hosting Services to Customer.

2.2    Additional Services. Subject to the terms and conditions of this Agreement, Connectria may from time to time perform services in addition to the Managed Hosting Service including, for example, certain system administration services, customization of the Managed Hosting Services, services described in the AUP, data storage, excess data transfer, and/or any other professional or technical services (collectively, the “Additional Services”) which will be charged on an hourly fee basis or on a per unit fee basis, depending on the particular service. Such Additional Services will be performed upon Customer’s request but only if agreed to by Connectria in an applicable Statement of Work or through a support ticket. In addition, Connectria may perform Additional Services without Customer’s request or consent as otherwise provided in this Agreement or if such Additional Services are necessitated by a breach of this Agreement (including, without limitation, the AUP) by Customer.

2.3    New Domain Accounts. If Connectria is engaged by Customer to set up and host any new web hosting accounts involving new Internet domain names, then Connectria will use reasonable efforts to set up and enter any new web hosting accounts involving new Internet domain names into Connectria’s DNS servers within 24 hours unless there are unforeseen complications. If the new domain is registered by the account holder, there will be no handling fee. If the domain is registered by Connectria on behalf of the account holder, Connectria will perform these services as Additional Services billable on an hourly basis as system administration hours in accordance with Section 5.2 below.

2.4    Transfer of Domains. Connectria may require additional time to set up a Customer account if Connectria is engaged by Customer to transfer an Internet domain name from another provider to Connectria. Due to the unpredictable nature of the transfer process, no guarantees are made regarding the amount of time a specific transfer may take. If the transfer of the domain is done by Connectria on behalf of the account holder, Connectria will perform these services as Additional Services on an hourly basis as system administration hours in accordance with Section 5.2 below. If the Customer cancels such service during the transfer period for any reason, all fees incurred through the date of cancellation shall be considered due and payable.

2.5    Contingencies. All of Connectria’s obligations under this Agreement (including, without limitation, this Section 2) are contingent upon (a) Customer’s satisfaction of Connectria’s credit approval requirements, (b) Connectria’s verification of the information provided by Customer for the purpose of establishing the applicable Service, and (c) Customer’s strict compliance with all terms and conditions of this Agreement including, without limitation, timely payment of all amounts due hereunder.

2.6    Denial and Suspension of Service. In furtherance of Section 2.5 above but without limiting in the generality thereof, Connectria reserves the right to refuse service to anyone at any time for any reason not prohibited by law. Without limiting the generality of the foregoing, Customer agrees that Connectria may suspend Services to Customer without notice and without liability if: (a) Connectria believes that Customer has breached any provision of this Agreement, (b) Connectria believes that the Services are being used in violation of the AUP, (c) Customer fails to cooperate with any Connectria investigation of any suspected violation of the AUP, (d) there is a denial of service attack on Customer’s servers or other event for which Connectria believes that the suspension of Services is necessary to protect its network or its other customers, and/or (e) as requested by a law enforcement or government agency. Information on Connectria’s servers will be unavailable during a suspension of Services.

3.    Support Policies.

3.1    Technical Support. Connectria will, for the duration of any applicable Statement of Work, provide Customer with 24/7 technical support for the corresponding Managed Hosting Service pursuant to that Statement of Work and in accordance with this Agreement. When Customer believes that some component of the Managed Hosting Service is experiencing a problem, Customer agrees to complete an online service ticket as a first step prior to contacting Connectria Technical Support.

3.2    System Administration. When Customer requires a change or modification be made to the Managed Hosting Service provided to Customer, Customer agrees to complete an online service ticket as a first step whenever possible. All services provided by Connectria related to any such change or modification shall be considered system administration services and shall be charged against Customer’s pre-purchased block of system administration hours, if any, or, if Customer does not have any pre-purchased system administration hours, Customer agrees to pay Connectria for such system administration services at Connectria’s then current rates in 15-minute increments. Any pre-purchased system administration services that go unused at the end of each month will lapse and do not roll over to the following month.

3.3    Support Not Provided. Customer agrees that Connectria does not offer 24/7 training nor end-user support for any Services, nor 24/7 support for any application specific issues such as application programming, application performance tuning, html or any other such issues, unless specifically contracted for by Customer and agreed to by Connectria in writing and in advance. Customer also agrees that Connectria does not provide technical support for Customer’s clients.

4.    Customer’s Obligations.

4.1    Reasonable Security Precautions and Acceptable Actions. Notwithstanding anything contained in this Agreement to the contrary, Connectria shall have no liability for any damages incurred by Customer due to a breach of security. Accordingly, Customer agrees to (a) use reasonable security precautions in connection with its use of the Services, and (b) if Customer resells Connectria’s services, require its customers and end users to use reasonable security precautions. In addition, Customer agrees not to take any action or install any software which may preclude or impair Connectria’s ability to access or administer its servers.

4.2    Customer Data Back Up. Depending on the specific Services purchased by Customer, Connectria may provide either partial or full Data backup services for Customer, or Customer may choose not to have Connectria provide any Data backup services, on any or all of Connectria’s dedicated servers, cloud servers, or cloud storage used by Customer. As such, Customer acknowledges that servers and storage systems can and do fail and the risk of Data loss is always present when any Data is stored on a computer system of any kind, even with the security and reliability protections that Connectria provides. Customer also acknowledges that Data backups in general do not always allow for restoration of Data due to the many inherent limitations when performing Data backups, and that Connectria’s Data backup services may not always allow Customer to restore any or all of their Data in the event of a failure of any kind. Accordingly, and notwithstanding anything contained in this Agreement to the contrary, Customer agrees that Connectria shall have no liability for loss of any Data stored on Connectria’s servers by Customer or otherwise provided by Connectria to Customer, even if Connectria is providing any type of Data backup services to Customer. For purposes of this Section 4.2, “Data” includes any software, content, and any other information stored on Connectria’s servers by Customer or otherwise provided to Connectria by Customer.

4.3    Compliance With Applicable Laws. Customer shall comply with all applicable laws and governmental regulations applicable to, and/or affecting its use of, the Services, and Connectria shall not have any responsibility relating to Customer therefore including, without limitation, any responsibility to advise Customer of Customer’s responsibilities in complying with any laws or governmental regulations affecting its use of the Services. If Customer resells Connectria’s Service, Customer shall require its customers and end users to comply with such laws and regulations. Connectria shall comply with all applicable laws and governmental regulations affecting its provision of the Services.

4.4    Customer’s Applications & Website. For the avoidance of doubt, Customer acknowledges and agrees that (a) Customer’s application software and website may have certain software or hardware dependencies in order to run properly in a managed hosting environment using Connectria’s Service(s), (b) Customer is solely responsible for ensuring that Customer’s applications and/or website will function properly on Connectria’s Service(s) using the hardware and software supported by Connectria prior to contracting with Connectria, and (c) Connectria has no obligation whatsoever to assist or ensure that Customer’s applications or website functions properly on Connectria’s Service(s), unless agreed to in writing by Connectria in a Statement of Work or through a support ticket. Accordingly, Customer shall be solely responsible for any cost or effort to change or modify Customer’s applications or website to function properly on the Connectria Service(s), and Customer’s inability to have its applications or website function properly using the Connectria Service(s) shall not relieve Customer of any of its obligations under this Agreement, unless other arrangements have been made between Customer and Connectria in a Statement of Work or through an applicable agreed upon support ticket.

4.5    Unauthorized Use of Service. While Connectria may provide security services to Customer, Customer is solely responsible for the security of the Services provided pursuant to this Agreement, and Connectria agrees only to perform the specific security services described in the Order Form or Statement of Work, and/or other portion of the Agreement. Customer shall be responsible for any unauthorized use of the Services by any person, and shall pay all fees incurred for its account by any person using the Services, unless such unauthorized use was because of a security breach that occurred when a component of Connectria’s Security Environment that Customer had contracted for was unavailable which would have, under normal operating practices, protected Customer from said security breach.

4.6    Acceptable Use Policy (AUP). Customer acknowledges that it has read Connectria’s Acceptable Use Policy located at http://www.connectria.com/legal/acceptable_use.php, and Customer agrees to comply with such policy and any changes thereto which are made in accordance with the further provisions of this Section 4.6 (“Acceptable Use Policy” or “AUP”). Connectria may change such policy by giving notice thereof to Customer, and Connectria shall be deemed to have given Customer notice thereof on the earlier to occur of the date Connectria posts the revised policy on its web site or the date Connectria gives Customer notice thereof in accordance with Section 11.5 below. Subject to the further provisions of this Section 4.6, any such change shall be effective thirty (30) days after the date such notice is given to Customer. If Customer believes that a change to the AUP will adversely affect Customer in a material manner, Customer agrees to give Connectria written notice describing such adverse effect in reasonable detail within five (5) Business Days after the date notice of such change is given to Customer. Connectria may, but shall have no obligation to, waive the portion of the change giving rise to such adverse effect by giving notice of such waiver to Customer within five (5) Business Days thereafter. In the event Connectria does not agree to waive the change as to Customer within such five (5) Business Day period, then Customer may terminate this Agreement by giving written notice thereof to Connectria within ten (10) days after the expiration of such five (5) Business Day period, in which event this Agreement shall terminate on the last day of the calendar month after the calendar month in which such notice is given and such change shall not be applicable to Customer during such period. If Customer resells Connectria’s Service, Customer shall require its customers and end users to comply with the AUP (including any changes thereto). Furthermore, Customer agrees to cooperate with Connectria’s reasonable investigation of any suspected violation of the AUP by Customer or any of its customers or end users.

4.7    Notices, Restrictions and Third Party Terms. Customer agrees not to remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any software and/or Services provided by Connectria. Subject to applicable law, Customer may not reverse engineer, decompile, or disassemble any Connectria provided software. Customer acknowledges that the Services may be subject to terms and conditions imposed by third parties which are set forth on Connectria’s web site or are otherwise provided to Customer. Customer agrees to be bound by, and to comply with, any such third party terms and conditions, as terms and conditions may be changed from time to time. Without limiting the foregoing, if the applicable Statement of Work or Order Form indicates that Connectria uses Microsoft software to provide the applicable Services, Customer agrees to the applicable Customer License Terms for Microsoft software published by Microsoft Corporation.

4.8    Third Party Products. As a convenience to Customer, Connectria may from time to time arrange for Customer’s purchase or license of third party software, services, and other products not included as part of the Service, and/or may provide support to Customer in relation to those products. Customer’s use of third party software, services, and other products is governed by the terms of any license or other agreement between Customer and the third party.

4.9    Distributed Denial Of Service (DDoS) Attacks. A distributed denial of service (“DDoS”) attack occurs when a number of servers (that have typically been “hacked” or compromised located throughout the Internet) launch an attack against a website or a server, and send a flood of traffic to that website or server. A DDoS attack can significantly impact the performance of the network under attack, and can consume significant amounts of Internet bandwidth. In order to protect Connectria and its customers from DDoS attacks, Connectria offers monthly ongoing DDoS protection to its customers within our Managed Services offerings, as well as One-Time DDoS protection for customers that have not signed up for a monthly service but find themselves under attack. If a Customer contracts for DDoS protection from Connectria, Customer’s traffic will be scrubbed and good traffic (i.e., non-attacked traffic) will be sent to Customer’s servers, although Customer agrees and accepts that Connectria shall be allowed to place a limit on the amount of Internet traffic to be accepted as part of an attack on Customer’s server(s). This limit may vary based upon the load on Connectria’s network at any given time, and will be determined by Connectria in its sole discretion. In the event the total traffic (including attacking and non-attacking traffic) to Customer’s server(s) goes above the limit set by Connectria such that Connectria believes a continued attack may cause a significant impact to Connectria’s network or other customers, Customer accepts that Customer’s Internet traffic going to the attacked server(s) will be null routed (blocked) until the attack drops to a level deemed to be acceptable by Connectria. For those Connectria customers that do not sign up for either ongoing Monthly DDoS protection or One-Time DDoS protection and find themselves under a DDoS attack, those Customers’ Internet traffic will null routed (blocked) on the server(s) being attacked. In addition, Customer agrees that they will be responsible for any monthly Internet bandwidth usage charges or monthly data transfer charges above Customers’ contracted amounts during such an attack, as calculated by Connectria using Connectria’s standard monthly data transfer calculation methods and its current rates for additional data transfer.

4.10    Data Encryption. In the event Customer transmits to, maintains or stores on Connectria’s server(s) any Protected Health Information as this term is defined in the Health Insurance Portability and Accountability Act of 1996 and the regulations promulgated by the United States Department of Health and Human Services (“DHHS”) pursuant thereunder (“HIPAA”) or any personal information (or similar term) as such term (or similar term) is defined under any applicable data security or data breach laws (collectively, Protected Health Information and Personal Information is referred to herein as “PHI”), Customer acknowledges and agrees that Connectria’s Services provided hereunder do not involve any use or disclosure of PHI to Connectria and that Connectria does not need access to PHI to provide the Services hereunder. Further, Customer agrees as follows: (a) Customer shall transmit to, maintain and store any PHI on Connectria’s server(s) only in an encrypted format, which encryption shall at all times comply with DHHS issued guidance regarding securing PHI to render the PHI unusable, unreadable or indecipherable to unauthorized individuals; (b) while Customer may request assistance from Connectria to setup encryption for its PHI to be transmitted to, maintained or stored on Connectria’s servers, Customer agrees that Customer is solely responsible to ensure that said PHI is encrypted at all times consistent with the requirements set forth herein; and (c) Customer shall not at any time (A) transmit to, maintain or store on Connectria’s server(s) any PHI in unencrypted form, causing such PHI to be considered Unsecured PHI as such term is defined in the Health Information Technology for Economic and Clinical Health Act of 2009 and regulations promulgated thereunder, (B) disclose or provide access to Connectria any encryption key(s) or process that may be used to unencrypt the encrypted PHI, and (C) provide access to Connectria to any application(s) residing on the Connectria server(s) which stores PHI. Notwithstanding any other provision of this Agreement, Customer agrees that in the event (i) Customer breaches this Section 4.10 or is alleged to have breached this Section 4.10 (including, without limitation, any failure or alleged failure to encrypt any PHI consistent with the standards specified in this Section 4.10), and (ii) such breach or alleged breach subjects Connectria to compliance with any laws or to any sanctions, penalties, causes of actions, claims or expenses, Customer shall be solely responsible for all costs and expenses incurred by Connectria resulting therefrom and shall hold harmless and indemnify Connectria for any and all suits, claims, actions, causes of action, liabilities, losses, damages, costs, sanctions, and expenses (including attorneys’ fees and any other expenses) associated with or arising out of such breach or alleged breach. Further, notwithstanding any other provision of this Agreement, Customer agrees that in the event Customer fails to encrypt any PHI consistent with the standards specified herein and such unencrypted data is accessed by an unauthorized party while being stored on Connectria’s servers subjecting Connectria to sanctions, penalties, causes of actions, claims or expenses, Customer shall be solely responsible for all costs and expenses incurred by Connectria resulting therefrom and shall hold harmless and indemnify Connectria for any and all suits, claims, actions, causes of action, liabilities, losses, damages, costs, sanctions, penalties and expenses (including attorneys’ fees and any other expenses) associated with or arising out of such unauthorized access. The provisions of this Section 4.10 only apply to any Customer that transmits to, maintains or stores PHI on Connectria server(s).

5.    Fees.

5.1    Managed Hosting Services. Customer agrees to pay to Connectria the ongoing monthly fees and one-time set up fees due under each applicable Statement of Work and/or Order Form.

5.2    Additional Services. Customer agrees to pay Connectria any fees due for Additional Services, reinstatement of service, switching and upgrade fees and other recurring and non-recurring fees at, as applicable, Connectria’s standard hourly rates or fixed fees in effect at the time the applicable service(s) is performed.

5.3    Other Fees. Customer acknowledges that it is responsible for excess data transfer fees that may result from a denial of service or other attack on its Connectria servers.

5.4    Invoicing and Payment. Unless otherwise stated in writing from Connectria, Customer agrees to be billed monthly via credit card for all fees and expenses, and Connectria shall provide Customer with a monthly invoice for Customer’s fees and expenses incurred each month. Connectria’s first invoice shall include set up fees and a prorated portion of the monthly recurring fee from the Service Commencement Date to the last day of the calendar month. Connectria requires payment in full of the first month’s fees and all setup fees before beginning any Service. Following the Service Commencement Date, monthly recurring fees shall be charged to Customer’s credit card and invoiced in advance of each month, approximately 3-7 business days prior to the beginning of the each month, and said charges are due upon receipt. Invoices for Additional Services, reinstatement of service, switching and upgrade fees and other recurring and non-recurring fees, if any, are due upon receipt and shall be invoiced and charged to Customer’s credit card immediately following the month they were incurred. Credits due under the Service Level Agreement may be given, at Connectria’s option, against the invoice for the month in which the event(s) occurred or the invoice for the following month. Payments must be made in United States dollars. Except as otherwise expressly provided in this Agreement, all fees and charges are non-refundable.

5.5    Interest and Collection. Connectria may charge Customer interest on the outstanding balance of any overdue amounts at a rate equal to 1.0% per month or the highest rate permitted by applicable law, whichever is lower. Customer will reimburse Connectria for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any overdue amounts. Customer agrees to pay Connectria’s reasonable costs of collection of overdue amounts, including collection agency fees, attorney’s fees and court costs. Disputes as to the accuracy of an invoice must be presented in writing to Connectria by Customer within forty-five (45) days of the date of the invoice, and invoices that are not so disputed within such forty-five day time period are conclusively deemed accurate and accepted.

5.6    Suspension of Service. Without limiting any other right or remedy Connectria may have, Connectria may suspend any or all Services (a) on four (4) Business Days’ advance notice to Customer if payment for any Service is overdue, and (b) immediately in the event of any other breach of this Agreement including a violation of the AUP. Customer agrees to pay Connectria’s then current reinstatement fee following a suspension of service.

6.    Term and Termination.

6.1    Term. The term of this Agreement shall commence on the Effective Date and shall continue for the term specified in applicable Order Form or Statement of Work; subject, however, to renewal and earlier termination as hereinafter provided. Upon the expiration of the initial term and each renewal term, the term of this Agreement shall be renewed for successive periods equal to the initial period set forth on the applicable Order Form or Statement of Work unless one party gives the other party notice of its intention that the term of this Agreement not renew at least thirty (30) days before the expiration of the then-current term.

6.2    Termination by Customer. Customer may terminate this Agreement (a) by giving notice of termination to Connectria if Connectria fails in a material way to provide the Managed Hosting Service in accordance with the terms of this Agreement and does not cure the failure within thirty (30) days after Customer’s written notice describing the failure in reasonable detail, or (b) in accordance with Section 4.6 above(AUP). In addition, Customer may terminate this Agreement immediately by giving written notice to Connectria, (a) if Connectria voluntarily files a petition for relief under the Bankruptcy Code, (b) if an order for relief under the Bankruptcy Code is entered against Connectria following the filing of an involuntary petition for relief under the Bankruptcy Code against Connectria, (c) if such an involuntary petition is filed against Connectria and the proceeding initiated by such filing is not terminated within sixty (60) days after the day on which such an involuntary petition is filed, (d) if Connectria makes an assignment for the benefit of its creditors, (e) if a receiver is appointed for Connectria or any of its assets, or (f) if any of Connectria’s assets are attached or foreclosed.

6.3    Termination by Connectria. Connectria may terminate this Agreement by giving notice to Customer in the event Customer breaches any provision of this Agreement and fails to cure such breach within thirty (30) days after notice thereof is given to Customer by Connectria (except that such cure period shall be limited to four (4) Business Days in the event of a breach due to the failure to pay any amount due hereunder), and such termination shall be effective on the date set forth in such notice. In addition, Connectria may terminate this Agreement immediately by giving notice to Customer (a) if Customer voluntarily files a petition for relief under the Bankruptcy Code, (b) if an order for relief under the Bankruptcy Code is entered against Customer following the filing of an involuntary petition for relief under the Bankruptcy Code against Customer, (c) if such an involuntary petition is filed against Customer and the proceeding initiated by such filing is not terminated within sixty (60) days after the day on which such an involuntary petition is filed, (d) if Customer makes an assignment for the benefit of its creditors, (e) if a receiver is appointed for Customer or any of its assets, (f) if any of Customer’s assets are attached or foreclosed, (g) if Connectria believes that Customer is or has violated the AUP, and/or (h) if Connectria reasonably believes that Customer is infringing the intellectual property rights of others or is aiding or threatening such infringement. In addition, if Connectria is faced with a claim that the Services provided by Connectria infringe on the intellectual property rights of a third party, and Connectria is not reasonably able to obtain the right to use the infringing element or modify the Services such that they do not infringe, Connectria may terminate this Agreement by giving at least sixty (60) days prior notice to Customer, and will not have any liability on account of such termination, except to refund amounts paid for Services not used as of the time of termination. Connectria’s termination rights provided in this Section 6.3 are in addition to any other rights and remedies available at law or in equity.

6.4    Obligations Upon Termination. Upon the expiration or earlier termination of this Agreement for any reason, Customer agrees (a) to immediately cease using all Services, (b) to promptly release any Internet protocol numbers, addresses or address blocks assigned to Customer in connection with the Service (but not any URL or top level domain or domain name), and (c) that Connectria may take steps to change or remove any such IP addresses. Subject to applicable law, Connectria may delete and otherwise destroy all Customer-provided software and data at any time after the expiration or earlier termination of this Agreement. However, if Customer requests the return of any Customer-provided data or software by giving notice thereof to Connectria on or before the expiration or earlier termination of this Agreement, then, subject to compliance by Customer with the further provisions of this Section 6.4, Connectria will use reasonable efforts to deliver to Customer any Customer-provided data and/or software then in the possession of Connectria. Customer will be responsible for all costs incurred by Connectria in connection therewith and for fees for any time spent by Connectria related thereto, which fees will be billable system administration hours, and Customer will prepay Connectria for Connectria’s estimated amount of such costs and fees upon the request of Connectria.

6.5    Early Termination Fee. Customer acknowledges that the amount of the monthly recurring fee for the Managed Hosting Service is based on Customer’s agreement to pay the fee for the entire term of the then-current term (i.e., the initial term or any renewal term). Accordingly, in the event this Agreement terminates for any reason other than an termination by Customer in accordance with Section 6.2 above, Customer agrees that all fees due under this Agreement, including the monthly recurring fees for the remaining portion of the then-current term, shall be due on the Business Day following termination of the Managed Hosting Service, and Customer agrees to pay said fees within fifteen (15) days after the date of service termination.

7.    Warranties, Disclaimer and Limitations of Liability.

7.1    General. Each of Customer and Connectria represent and warrant to the other of them that (a) it has all necessary corporate power, business licenses, authority and capacity to enter into this Agreement and to perform and fulfill each of its obligations hereunder, (b) it shall exercise its rights and perform its obligations under this Agreement in accordance with all applicable laws, rules and regulations, (c) there is no outstanding claim, litigation, proceeding, arbitration, investigation or material controversy to which such party is a party that would reasonably be expected to have a material adverse effect on such party’s ability to enter into this Agreement or perform any of its material obligations hereunder, (d) its execution, delivery and performance of its obligations under this Agreement does not and will not violate any judgment, order or decree and does not and will not constitute a material default under any of its existing contracts, and (e) the execution, delivery and performance of this Agreement have been duly authorized by all necessary corporate action, and this Agreement constitutes a legally valid and binding obligation of such party enforceable against it in accordance with its terms except as such enforcement may be limited by applicable law.

7.2    Customer. Customer represents and warrants to Connectria that all information Customer provides to Connectria for purposes of establishing and maintaining the Services (including, without limitation, correct contact information along with all other information entered as part of the order process) is accurate. Customer warrants that it will timely update such information in order that it is at all times current and accurate.

7.3    Disclaimer. All Services and any third party products are provided to Customer on an “AS IS, AS AVAILABLE” basis. Notwithstanding anything contained in this Agreement to the contrary, Connectria makes no representations or warranties relating to any Services or any third party products including, without limitation, any warranties that (a) the Services or third party products shall meet Customer’s requirements, (b) the operation of the Services or third party products will be uninterrupted, error free or secure, or (c) any or all defects in the Services or third party products will be corrected. Further, and notwithstanding anything contained in this Agreement to the contrary, Customer acknowledges that there are risks inherent in operating computer servers and Internet connectivity that could result in the loss of Customer’s privacy, confidential information, and property and that, to the extent permitted by applicable law, such risks shall be borne solely by Customer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.1 ABOVE AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, CONNECTRIA HEREBY DISCLAIMS ANY AND ALL WARRANTIES AND/OR REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, ORAL OR WRITTEN INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, AVAILABILITY, SECURITY, REASONABLE CARE, AND/OR FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT CONNECTRIA KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE), IN EACH INSTANCE WITH RESPECT TO ANY AND ALL SERVICES AND ALL THIRD PARTY PRODUCTS. IN ADDITION, CONNECTRIA MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND THAT CUSTOMER WILL BE HIPAA COMPLIANT BY UTILIZING CONNECTRIA’S SERVICES, AND IT IS CUSTOMER’S SOLE RESPONSIBILITY TO ASSURE THAT CUSTOMER TAKES APPROPRIATE STEPS TO ACHIEVE COMPLIANCE WITH ITS HIPAA OBLIGATIONS. CONNECTRIA FURTHER DISCLAIMS ANY AND ALL WARRANTIES, AND/OR REPRESENTATIONS OF TITLE AND NON-INFRINGEMENT WITH RESPECT TO ANY AND ALL SERVICES AND ALL THIRD PARTY PRODUCTS. FOR THE AVOIDANCE OF DOUBT, NOTHING IN THIS SECTION 7.3 SHALL LIMIT CONNECTRIA’S OBLIGATION TO CREDIT CUSTOMER ANY AMOUNTS THAT MAY BE DUE UNDER ANY APPLICABLE SERVICE LEVEL AGREEMENT.

7.4    Limitation of Liability. IN NO EVENT SHALL EITHER PARTY OR ITS RESPECTIVE PARENTS, SUBSIDIARIES, AFFILIATES, OR SUPPLIERS BE LIABLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT AND/OR ANY SERVICES, WHETHER FOR BREACH OF CONTRACT, IN TORT OR OTHERWISE, EVEN IF IT IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDED, HOWEVER, THAT THE FOREGOING SHALL NOT BE APPLICABLE TO CUSTOMER’S OBLIGATIONS UNDER SECTION 4.10 ABOVE AND SECTION 8 BELOW OR TO ANY CLAIMS OF CONNECTRIA’S ARISING OUT OF (I) THE INFRINGEMENT AND/OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY (OR RELATED RIGHTS) BY CUSTOMER INCLUDING ANY RELATED BREACH OF THIS AGREEMENT, (II) A BREACH BY CUSTOMER OF THE AUP, OR (III) A VIOLATION BY CUSTOMER OF APPLICABLE LAW.

IN NO EVENT WILL CONNECTRIA, ITS PARENTS, SUBSIDIARIES, AFFILIATES OR SUPPLIERS BE LIABLE FOR (A) THE COST OF COVER OF SUBSTITUTE SERVICES, (B) ANY DAMAGES OF ANY NATURE WHATSOEVER RESULTING FROM, OR RELATED TO, BUSINESS INTERRUPTION, A BREACH OF SECURITY IN RESPECT OF ANY OF THE SERVICES, AND/OR THE LOSS, DELAY OR INABILITY TO USE ANY SERVICES, AND/OR (C) THE LOSS OF ANY DATA, ANY INFORMATION, SOFTWARE, PRODUCTS, AND/OR SERVICES CAUSED BY THE SERVICES INCLUDING, WITHOUT LIMITATION, THE COST OF RECREATING LOST DATA.

IN ALL EVENTS, CONNECTRIA’S AGGREGATE LIABILITY FOR CLAIMS RELATING TO THIS AGREEMENT AND ANY AND ALL SERVICES, WHETHER FOR BREACH OF CONTRACT, IN TORT OR OTHERWISE, SHALL NOT EXCEED THE GREATER OF (Y) THE AMOUNT OF FEES PAID BY CUSTOMER HEREUNDER DURING THE THREE (3) MONTHS PRIOR TO THE OCCURRENCE OF THE EVENT(S) GIVING RISE TO THE CLAIM, OR (Z) AN AMOUNT EQUAL TO THE MONTHLY FEE APPLICABLE TO THE MANAGED HOSTING SERVICE FOR THE MONTH IN WHICH THE EVENT(S) GIVING RISE TO THE CLAIM OCCURRED (WHETHER OR NOT SUCH FEE WAS PAID BY CUSTOMER). IN ANY JURISDICTION IN WHICH THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 7.4 ARE RESTRICTED, CONNECTRIA’S LIABILITY SHALL LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

7.5    Risk Allocation. The provisions of this Section 7 represent a reasonable allocation of the risks under this Agreement. Connectria's willingness to enter into this Agreement and provide the Services contemplated by this Agreement reflects this allocation of risk and the limitations of liability specified herein.

8.    Indemnification. Subject to the terms and conditions of this Agreement, Customer agrees to indemnify and hold Connectria, its parents, subsidiaries, and affiliates and each of their respective officers, directors, attorneys, agents, and employees (each an “Indemnified Party”) harmless from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including, without limitation, any and all attorneys’ and expert witness fees and court costs), that any Indemnified Party may incur or may be subject under any theory of legal liability to the extent arising out of or related to (a) the actual or alleged use of the Services in violation of, or by any allegation which, if true, would constitute a violation of, (i) the AUP, and/or (ii) any applicable law, in each instance by any person regardless of whether such person has been authorized to use the Services by Customer, (b) any dispute regarding the control of Customer’s account with Connectria, and/or (c) a breach of this Agreement by Customer, or by any allegation which, if true, would constitute a breach of this Agreement by Customer. Without limiting the generality of the foregoing, Customer shall pay Connectria $250.00 per hour (in one-hour minimum increments) for time reasonably spent by Connectria personnel in responding to third party complaints regarding Customer’s use or alleged use of the Services in violation of, or by any allegation which, if true, would constitute a violation of, the AUP including, without limitation, complaints under the Digital Millennium Copyright Act. Subject to the terms and conditions of this Agreement, Connectria agrees to indemnify and hold Customer and Customer’s officers, directors, attorneys, agents, and employees (each a “Customer Indemnified Party”) harmless from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including, without limitation, any and all attorneys’ and expert witness fees and court costs), that any Customer Indemnified Party may incur or may be subject under any theory of legal liability to the extent arising out of or related to a breach of this Agreement by Connectria.

9.    Confidentiality.

9.1    Definition of Confidential Information. The term “Confidential Information” means, subject to the further provisions of this Section 9.1 and to Section 9.2 below, any and all nonpublic information, in any form or medium, tangible or intangible and whether communicated by or on behalf of one party (each a “Disclosing Party”) to the other party (each a “Receiving Party”) that (i) if disclosed in tangible form, is conspicuously marked or otherwise designated “confidential” to the Receiving Party, or (ii) if disclosed in non-tangible form, is verbally designated as “confidential” at the time of disclosure and confirmed as confidential in a written notice given within one (1) day of disclosure. In all events, Connectria’s Trade Secrets and all Feedback (as defined in Section 10.1 below) shall be considered Connectria’s Confidential Information.

9.2    Exclusions. The term “Confidential Information” does not include information, however designated, that (a) is or subsequently becomes generally known or available by publication, commercial use or otherwise without the Receiving Party’s breach of any obligation owed to the Disclosing Party, (b) is known to the Receiving Party prior to the Disclosing Party’s disclosure of such information to the Receiving Party without any restriction on the Receiving Party’s further use or disclosure, (c) becomes known to the Receiving Party from a source other than the Disclosing Party without any restriction on the Receiving Party’s further use or disclosure and other than by the breach of an obligation of confidentiality owed to the Disclosing Party, and/or (d) is independently developed by the Receiving Party without use of or access to the Disclosing Party’s Confidential Information.

9.3    General Obligations. Subject to the further provisions of this Section 9.3 and to Section 9.4 below, the Receiving Party agrees that during the term of this Agreement and for a period of three (3) years thereafter it will (a) refrain from disclosing any Confidential Information of the Disclosing Party, (b) take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information but no less than reasonable care, to keep confidential the Confidential Information of the Disclosing Party, and (c) refrain from using the Confidential Information of the Disclosing Party except in furtherance of its obligations under this Agreement or as necessary to exercise the rights granted to it under this Agreement; provided, however, that Customer’s obligations under this Section 9.3 shall continue indefinitely beyond such three (3) year period with respect to Connectria’s Trade Secrets until such time as Connectria’s Trade Secrets no longer constitute trade secrets under applicable law. Connectria may disclose the Confidential Information of Customer to Connectria’s service providers, agents and representatives who are bound by confidentiality restrictions at least as restrictive as those stated in the Agreement.

9.4    Requests for Customer Information. Notwithstanding anything contained in this Agreement to the contrary, Customer agrees that Connectria may, without notice to Customer, (a) report to the appropriate authorities any conduct by Customer or any of Customer’s customers or end users that Connectria believes violates applicable law, and (b) provide any information, including Confidential Information, 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 government agency. Customer also agrees that Connectria may provide any information, including Confidential Information, it has about Customer or its customers or end users in response to a formal request in a civil action that on its face meets the requirements for such a request; provided, however, that if Connectria pursuant to a civil action is legally compelled to disclose any of the Customer’s Confidential Information, Connectria will, if permitted by applicable law, provide Customer with prompt written notice thereof, so that Customer, at its sole expense, may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of Section 9 of this Agreement.

10.    Ownership.

10.1    General. Subject to the further provisions of this Section 10.1, each party acknowledges and agrees that: (i) nothing in this Agreement transfers ownership in any of such party’s trade secrets, inventions, copyrights, and other intellectual property to the other party and (ii) each party owns their respective intellectual property. Further, Connectria acknowledges that Customer owns, and shall continue to own, any and all data and content which Customer stores on Connectria’s servers, and nothing in this Agreement shall transfer ownership of Customer’s data or content to Connectria. Customer acknowledges and agrees that (a) Connectria owns, and shall continue to own any and all intellectual property (including, without limitation, all of Connectria’s Trade Secrets) that Connectria may utilize or develop in the course of performing the Services, and (b) Customer does not acquire any ownership interest or rights to possess Connectria’s server(s) or other hardware, and has no right of physical access to the hardware. Customer agrees not to contest any copyright, patent, trademark of other intellectual property right of Connectria’s relating to the Services. To the extent that Customer provides any comments, instructions, suggestions, information, and/or other feedback to Connectria, respecting any Services and/or otherwise (collectively, “Feedback”), such Feedback shall be owned exclusively by Connectria. To the extent Customer has or obtains any intellectual property rights in or to any Feedback, Customer shall be deemed to assign all right, title and interest therein, if any, to Connectria as of the date such right first vests in Customer.

10.2    Connectria’s Trade Secrets. Customer acknowledges and agrees that in the course of providing Managed Hosting Services to Customer, Connectria may disclose (or Customer may otherwise learn) one or more of Connectria’s Trade Secrets. For example, in the course of providing Managed Hosting Services to Customer, Connectria may give Customer, as applicable, full (a) “Root access” (for Linux), and/or (b) “Admin access” (for Windows), in each instance to Connectria’s software and hardware including Connectria’s servers. Customer further acknowledges and agrees that in the course of such access, Customer may gain access to, and knowledge of, certain tools, methods and techniques used by Connectria to deliver Connectria’s uniquely high levels of performance, security, cost-effectiveness, and reliability with respect to the Manage Hosting Services and otherwise (all of such tools, methods and techniques shall be referred to collectively herein as “Connectria’s Managed Hosting Tools”). Without limiting the generality of Section 9 above, Customer further acknowledges and agrees that Connectria’s Managed Hosting Tools and all other of Connectria’s Designated Trade Secrets (x) are not generally known to, and are not readily ascertainable by proper means by, Customer or by third parties, (y) derive independent economic value to Connectria from not being generally known to, and not being readily ascertainable by proper means by, Customer or by third parties, and (z) are the subject substantial efforts by Connectria to maintain their confidential nature. Customer further acknowledges and agrees that third parties would obtain economic value from the disclosure of Connectria’s Designated Trade Secrets to them. Customer acknowledges and agrees that all Connectria’s Designated Trade Secrets constitute Connectria’s trade secrets under applicable law and agrees not to contest their status as trade secrets.

11.    Miscellaneous.

11.1    Connectria’s Use of Customer’s Name. Customer agrees that Connectria may publicly disclose that Connectria is providing services to Customer and may include Customer’s name and other identifying information in promotional materials, including press releases and on Connectria’s web site.

11.2    Amendment. Except as provided in Section 4.6 above with respect to the AUP, this Agreement may not be changed, modified, amended, rescinded, canceled or waived, in whole or in part, except pursuant to a writing signed by the parties. Accordingly, no course of conduct shall constitute an amendment hereto.

11.3    Governing Law/Jurisdiction. This Agreement shall be deemed to be executed in St. Louis, Missouri. This Agreement, and all matters arising out of or relating to this Agreement, shall be governed by the laws of the State of Missouri and the federal laws of the United States, without giving effect to the conflict of law provisions thereof and excluding any application of the United Nations Convention on Contracts for the International Sale of Goods. Customer consents to exclusive jurisdiction and venue in the federal courts sitting in St. Louis, Missouri, unless no federal subject matter jurisdiction exists, in which case each party hereto consents consent to exclusive jurisdiction and venue in the state courts sitting in St. Louis County, Missouri. Each party hereto hereby irrevocably waives, to the fullest extent permitted by applicable law, any objection which it may now or hereafter have to the laying of venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum. Any action of any kind arising out of or in any way connected with this Agreement, other than collection of outstanding payment obligations, must be commenced within two (2) years of the date upon which the cause of action accrues.

11.4    Survival. Each provision of this Agreement that would by its nature or terms survive any termination of this Agreement shall survive the expiration or earlier termination of this Agreement, regardless of the cause. Such provisions include, without limitation, Sections 5, 6.4, 6.5, 7.4, 7.5, 8, 9, 10, and this Section 11.

11.5    Notices and Customer Contact. All notices given hereunder including, without limitation, notices of address change shall be given in English and in writing. Notices to Connectria under the Agreement shall be sent by certified mail, return receipt requested, postage and fees prepaid, to the address set forth on the cover page to this Agreement or to such other address for notices as Connectria may hereafter designate in writing. Notices given to Connectria shall be sent to the attention of “President”. Subject to Section 4.6 above, notices to Customer shall be given via electronic mail to any one or more of the individuals and entered into by Customer as part of the online ordering process and/or by other means reasonable under the circumstances, including an e-mail to a known contact. Any notices given in accordance with this Section 11.5 shall be deemed given on the day delivered, or if that day is not a Business Day, on the first Business Day following the day delivered. Notices given by email to Customer shall be deemed delivered on the date they are sent, whether or not that day is a Business Day.

11.6    Force Majeure. Connectria shall not be responsible or liable for any damages, delays, or other failures to fulfill its obligations hereunder as a result of events or circumstances beyond the reasonable control of Connectria including, without limitation, delays due to third party vendors, war, fire, strike, riot or insurrection, natural disaster, delay of carriers, governmental order or regulation, complete or partial shutdown of plant, unavailability of materials or equipment from suppliers, failures or blackouts, labor disputes, and/or other occurrences whether or not similar to those listed above.

11.7    Assignment. Neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned by Customer (whether by operation of law or otherwise) without the prior written consent of Connectria, whose consent shall not be unreasonably withheld. Connectria may assign this Agreement without the consent of Customer, in whole or in part. Further, for the avoidance of doubt, Connectria may, in its sole discretion, delegate performance of all or any part of its obligations hereunder to subcontractors or independent consultants of its choosing. Subject to the foregoing, this Agreement shall be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and permitted assigns.

11.8    Construction. All captions contained in this Agreement are for convenience only and shall not be deemed to be part of this Agreement. Accordingly, they shall not constitute a part of this Agreement when interpreting or enforcing this Agreement. Each party has substantially participated in the drafting and negotiation of this Agreement, and no provision hereof shall be construed against either party by virtue of the fact that such provision was drafted by such party. All defined terms used in this Agreement shall be deemed to refer to the masculine, feminine, neuter, singular and/or plural, in each instance as the context and/or particular facts may require. Use of the terms "hereunder", "herein", "hereby", and similar terms refer to this Agreement.

11.9    Relationship of Parties. Each of the parties to this Agreement is acting only as an independent contractor and assumes full responsibility for each of its employees and shall be solely responsible for the payment of compensation to its personnel. This Agreement does not constitute either party hereto as the agent or legal representative of the other party and does not create a partnership or joint venture between them. For the avoidance of doubt, The Agreement is non-exclusive. Connectria may provide service to any person, including a competitor of Customer.

11.10    Severability. If any provision of this Agreement is declared or found to be illegal, unenforceable or void, then both parties shall be relieved of all obligations arising under such provision, but only to the extent that such provision is illegal, unenforceable or void, it being the intent and agreement of the parties that this Agreement shall be deemed amended by modifying such provision to the extent necessary to make it legal and enforceable while preserving its intent or, if that is not possible, by substituting therefore another provision that is legal and enforceable and achieves the same objective. If the remainder of this Agreement shall not be affected by such declaration or finding and is capable of substantial performance, then, each provision not so affected shall be enforced to the extent permitted by law.

11.11    Waiver. A party’s failure to enforce any provision or provisions of this Agreement shall not in any way be construed as a “course of dealing” or a waiver of any such provision or provisions as to any future violations thereof, nor prevent that party thereafter from enforcing each and every other provision of this Agreement. No waiver shall be binding upon a party unless it is in writing and signed by such party. Such waiver shall apply only to the specific default or the instance specified, and a waiver of any default shall not waive any other default, whether or not similar to the default waived. The rights granted the parties are cumulative and the waiver by a party of any single remedy shall not constitute a waiver of such party’s right to assert all other legal remedies available to such party under the circumstances.

11.12    Cumulative Remedies. Except as expressly provided herein (including, without limitation, any applicable Service Level Agreement), no right or remedy conferred by this Agreement is exclusive of any other right or remedy conferred herein or by law or in equity; rather, all of such rights and remedies are cumulative of every other such right or remedy and may be exercised concurrently or separately from time-to-time.

11.13    Availability of Equitable Relief. The parties acknowledge and agree that noncompliance with the terms of this Agreement may cause irreparable injury to the other party for which the other party will have not an adequate remedy at law, and that the other party shall therefore be entitled to apply to a court for extraordinary relief, including but not limited to temporary restraining orders, preliminary injunctions, permanent injunctions, or decrees of specific performance. Subject to the provisions of this Agreement, nothing contained in this Section 11.13 shall prohibit either party from pursuing any other legal or equitable remedy available to it.

11.14    Non-solicitation. For the term of this Agreement and thereafter for a period of one (1) year, Customer agrees that it will not solicit, directly or indirectly, the employment of Connectria’s personnel performing duties related to this Agreement or with whom Customer has had direct contact. This provision shall not restrict in any way the right of Customer to solicit or recruit generally in the media or on the internet, but shall prohibit Customer from hiring, employing or engaging any Connectria employee who answers any advertisement or who would otherwise voluntary apply for hire without having been personally solicited or recruited by Customer. In the event of a violation of this provision, in addition to any other right Connectria may have at law or in equity, Customer shall make a one-time payment to Connectria in the amount of fifty percent (50%) of the employee’s base salary for one year.

11.15    Import and Export Compliance. In connection with this Agreement, each party will comply with all applicable import, re-import, export, and re-export control laws and regulations, including the Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control.

11.16    No Third Party Beneficiaries. Nothing in this Agreement shall confer upon any person other than the parties and their respective successors or assigns, any rights, remedies, obligations, or liabilities whatsoever.