MWH-AUP/TOS-03FEB2010

1. Introduction

This document (the "Agreement") sets forth the principles, guidelines and requirements of the Terms of Service of HASBROUCK ENTERPRISES, INC a Minnesota incorporated company (the "Company") doing business as MEWEBHOST.COM, governing the use by the customer ("Customer") of Company's services and products ("Services and Products"). These Terms of Service have been created to promote the integrity, security, reliability and privacy of Company's facilities, network, and Customer data contained within. The Company believes it provides the best services in the industry, and provides the following policies in the best interests of the Company and the Company's clients. The Company retains the right to modify these Terms of Service at any time and from time to time and any such modification shall be automatically effective as to all customers when adopted by Company and published here. Company shall be the sole and final arbiter as the interpretation of the following. By utilizing the Company's services and products, the Customer agrees to be bound by the terms herein outlined.

2. Compliance with the Law

Customer shall not post, transmit, re-transmit or store material on or through any of Services or Products which, in the sole judgment of the Company (i) is in violation of any local, state, federal or non-United States law or regulation, (ii) is threatening, obscene, indecent, defamatory or that otherwise could adversely affect any individual, group or entity (collectively, "Persons") or (iii) violates the rights of any person, including rights protected by copyright, trade secret, patent or other intellectual property or similar laws or regulations including, but not limited to, the installation or distribution of "pirated" or other software products that are not appropriately licensed for use by Customer. The Customer agrees to indemnify and hold harmless the Company from any claims resulting from the use of the services which damages the Customer or any other party. Customer shall be responsible for determining what laws or regulations are applicable to its use of the Services and Products.

3. Prohibited Uses of Services and Products

In addition to the other requirements of these Terms of Service, Customer may only use the Services and Products in a manner that, in the Company's sole judgment, is consistent with the purposes of such Services and Products. If Customer is unsure of whether any contemplated use or action is permitted, please contact the Company as provided above. By way of example, and not limitation, uses described below of the Services and Products are expressly prohibited.

3.1. General

3.1.1. Pornography and pornographic related merchandising are prohibited under all the Company's services. This includes sites that include links to pornographic content elsewhere. Further examples of unacceptable content or links include pirated software, "hacker" programs, archives of "Warez Sites", game rooms or MUDs, IRC Bots, Egg Drop programs, "Safe List" sites, FFA (Free For All) sites, and any kind of illegal software or shareware. In addition, sites offering online gambling, casino functionality, sportsbook betting (including offshore), and internet lotteries are prohibited.

3.1.2. Violations of the rights of any Person protected by copyright, trade secret, patent or other intellectual property or similar laws or regulations, including, but not limited to, the installation or distribution of "pirated" or other software products that are not appropriately licensed for use by Customer.

3.1.3. Actions that restrict or inhibit any Person, whether a customer of Company or otherwise, in its use or enjoyment of any of the Company's Services or Products.

3.2. System and Network

3.2.1. Introduction of malicious programs into the Company's network or server (e.g., viruses and worms).

3.2.2. Effecting security breaches or disruptions of Internet communication. Security breaches include, but are not limited to, accessing data of which Customer is not an intended recipient or logging into a server or account that Customer is not expressly authorized to access. For purposes of this Section 3.2.2., "disruption" includes, but is not limited to, port scans, flood pings, packet spoofing and forged routing information.

3.2.3. Executing any form of network monitoring which will intercept data not intended for the Customer's server.

3.2.4. Circumventing user authentication or security of any host, network or account.

3.2.5. Interfering with or denying service to any user other than Customer's host (for example, denial of service attack).

3.2.6. Using any program/script/command, or sending messages of any kind, designed to interfere with, or to disable, a user's terminal session, via any means, locally or via the Internet.

3.2.7. Creating an "active" full time connection on a Company-provided account by using artificial means involving software, programming or any other method.

3.2.8. Any attempt to circumvent or alter monitoring, bandwidth tracking or utilization reporting, or other actions which have the effect of complicating the normal operational procedures of the Company, including but not limited to altering, removing or in any way modifying or tampering with Company created log files.

3.2.9. Any action which the Company determines, in its own judgment, will reflect poorly on the Company or negatively impact its operations.

3.2.10. Any action which the Company deems to be an unacceptable use of resources, business practice or otherwise unacceptable to the Company

3.2.11. The MEWEBHOST.COM Network will be available to clients free of Network Outages for 100% of the time, exclusive of server reboots, system administration, non-compliant use of any software installed on a server, and any problems related to the denial of service issues on the machine such as hacking and possible exploits. Performance credit occurs when 100% network uptime is not met. MEWEBHOST.COM will refund 50% of your monthly fee for a network service outage equal to or greater than 60 continuous minutes. After an additional 60 minutes, we will refund another 50%, for a total of 100% of your monthly fee. To receive your credit for a qualified network service outage you must open a ticket with our support department during the downtime. The following information must be included in your email: Company Name, Account Number, Daytime Contact information and Date/Time of outage. Requests for credit following any service outage will not be granted nor will any credit be issued without a prior ticket having been opened.

3.3. Billing

3.3.1. Furnishing false or incorrect data on the order form, contract or online application, including fraudulent use of credit card numbers.

3.3.2. Attempting to circumvent or alter the processes any billing procedures or procedures to measure time, bandwidth utilization, or other methods to document "use" of the Company's Services and Products.

3.3.3. All billing is subject to reoccurring billing to the form of payment on file.

3.3.4. Any attempts to dispute (i.e. chargeback) hosting fees will result in the immediate termination of services without notification.

3.4. Mail

3.4.1. Sending unsolicited commercial email messages (UCE), including the sending of "junk mail" or other advertising material to individuals who did not specifically request such material, who were not previous customers of Customer or with whom Customer does not have an existing business relationship ("email spam").

3.4.2. Sending UCE referencing an email address for any domain hosted by the Company;

3.4.3. Sending UCE referencing a domain hosted by the Company;

3.4.4. Sending UCE referencing an IP address hosted by the Company;

3.4.5. Posting advertisements on IRC, ICQ, or any other public chat system containing an email address hosted by the Company, a domain hosted by the Company, an IP address belonging to the Company;

3.4.6. The Company will be the sole arbiter as to what constitutes a violation of these provisions.

3.4.7. Harassment, whether through language, frequency or size of messages.

3.4.8. Unauthorized use, or forging, of mail header information.

3.4.9. Solicitations of mail for any other E-mail address other than that of the poster's account or service with the intent to harass or to collect replies.

3.4.10. Creating or forwarding "chain letters" or illegal "pyramid schemes" of any type.

3.4.11. Use of unsolicited email originating from within the Company's network or networks of other Internet Service Providers on behalf of, or to advertise, any service hosted by the Company, or connected via the Company's network.

3.4.12. Activities deemed to be unsolicited marketing efforts or otherwise harassing in any way.

3.4.13. Customer will be charged a minimum $50.00 penalty charge for each instance of a verifiable UCE that is reported to the Company and faces immediate account suspension and/or termination, as well as further penalties.

3.4.14. Abusive scripts such as FFA's applications or installations of "BIGSENDER" mailing list applications (or any script/application designed to send rapid, unmonitored email communications) are strictly prohibited.

3.5. Customer Support

3.5.1. The Company promotes a mutually-professional relationship with its customers. Abusive, threatening, obscene or otherwise harassing communications with agents of the Company, via telephone, email, online chat or other means will result in immediate account termination not withstanding any other terms of this agreement. Violation of this or any section of this Agreement will result in refund ineligibility.

4. Bandwidth & Utilization

In addition to the other terms of this agreement, which apply to all plans, bandwidth and utilization, by its nature, is subject to a number of differing and/or additional terms. Customer agrees that Company will monitor and meter Customer's daily bandwidth and disk usage and in the event that Customer exceeds the bandwidth or disk usage allocated to each hosting package on any given day Company may take corrective action which may, at Company's sole discretion, include the assessment of additional charges, disconnection or discontinuance of any and all Services, or termination of this Agreement. All bandwidth is measured daily and monthly bandwidth allowances are divided by the calendar days of a given month to determine the daily bandwidth allowance. Customer agrees that in the event of a dispute Company's monitoring reports shall be the final method of determination how much disk space and bandwidth was used and agrees to pay the excess usage charges when due. Customer's logs files are counted against any disk usage.

4.1 The Company provides the space and unlimited transfer in good faith to our Customers so that they may create their Websites without the fear of running over their Web traffic allocation. While most Customers will use the space and traffic for their legitimate Web site needs, we recognize that others may try to take advantage of our offer and use the space and traffic in ways for which it is not intended. In the best interests of our Customers and in an effort to maintain the integrity of our service, the following common sense rules will apply:

4.1.1. Customer's site must use and store only the information and data that relates to the Website, at the IP address provided by the Company.

4.1.2. Customer may not use Customer's Website to store Web pages, files or data for other IP addresses or domain names, nor may Customer use its Website as a repository for file, data or "Warez group" download transfers. The Company reserves the right to make this determination, in its sole and absolute discretion;

4.1.3. The Company's bandwidth policy is to provide the Company's customers with storage space and bandwidth for active Web pages and cannot be used as a "storage space" for electronic files. An example of sites that fall under "electronic storage" are large archives of images, compressed files, movies, or sound files.

4.1.4. The storage and distribution of audio/video format files over 500 MB in size (each) via the Company network is prohibited.

4.1.5. The Company does not permit sites where 80% or more of the monthly traffic is from file downloads, or sites that use more than 80% of system resources, or sites which in the Company's view are detrimental to the enjoyment of the Company services by the Company's other clients, or are in the sole and final judgment of the Company, detrimental to network or business operations. All images in a Customer's hosting account must be linked to from pages within the Customer's hosting account. It is a violation of this agreement if Customer uses this account as merely an image, sound or file library.

4.1.6. The Company offers daily backups of all site content and archives data for 15 days. Normal hourly fees for restorations (if requested by client) will apply. Company can only guarantee the integrity of the first 300 megabytes of data backup yet Company will exercise all reasonable efforts to backup Customer's entire data content.

4.1.7. The Company may take whatever steps necessary to provide its services, and to provide for the enjoyment of such services by all of the Company clients, and to ensure that certain clients do not utilize services to the detriment of other clients. Customers with Websites that do not comply with these simple rules, or who seek to take advantage of the Company unlimited storage or traffic plan in any other way, will, at the discretion of the Company , have their sites canceled and/or removed from the servers and have service charges assessed at the discretion of the Company .

4.1.8. The Company will be the sole and final arbiter as to Websites or usages of resources that constitute violation or intent to violate our policies. Those Customers found in violation of these policies are subject to a $300.00 service charge for each instance of violation, exclusive of charges for the bandwidth and/or other resources utilized. Websites which the Company must suspend or cancel due to violation of these rules are not eligible to receive a refund for unused service, and are subject to charges for bandwidth and usage of resources at twice the standard rate for such resources. Acceptance of these Terms of Services, and/or use of Company's services constitutes an acceptance of any fines, penalties or service charges which might arise out of violation of these policies.

4.1.9. "Corporate Class" hosting plans are designed for high-bandwidth websites and applications. On Corporate hosting plans, bandwidth is limited to 100 GB per domain per month. This does not apply to "VPS/Unlimited" plans.

5. Terms and Termination

For the purposes of Section 5 of this agreement, the term "Thirty Day Guarantee Period" shall be defined as the period extending from the date a Customer signs up his or her first domain with the Company through the thirtieth (30) day following the initial signup of the first domain enrolled.

5.1. All cancellations must be received by the Company a minimum of five (5) days prior to the next billing date of the domain being cancelled for shared and reseller accounts. All VPS/VDS and dedicated servers require a 30 day cancellation notice. 

5.1.1. If the Customer notifies the Company less than five (5) days before the next billing date of the domain being cancelled, the charges incurred as a result of that renewal will not be refunded.

5.1.2. Cancellations requested within the Thirty Day Guarantee Period are eligible for a full refund, less setup fees and add-on-service fees which are non-refundable. Cancellations requested outside the Thirty Day Guarantee Period are not eligible for a refund in part or in full. 

5.1.3. Cancellation requests will only be accepted via the methodology at described here and by simultaneously contacting the accounts department for cancellation procedures.

5.1.4 30-Day Money-Back Refunds are applicable only for first-time ME Webhost clients; for example: if you have had a previous ME Webhost account, cancelled, and signed-up again, refunds are nonapplicable.

Any other form of cancellation request in not acceptable and billing will continue until ME Webhost receives said request.

5.2. Customer will not receive a refund for any other reason, including but not limited to: late cancellation, slow connection caused by Customer's ISP/network, Customer's ignorance, domain registrar delays, account termination for violation of policies.

5.3. By submitting a credit card or ACH information on the order form, Customer agrees to authorize all recurring charges to the account and any other balances incurred due to overages of limits, additions of extras to the account, service charges and/or any other fees, and to be bound to the terms of this Agreement.

5.4. Customer will not receive a refund for any setup fees or any fees other than the monthly recurring hosting fees.

5.5. Customer may be charged a $15 reactivation fee for each site suspended due to a billing-related issue.

5.6. Customer shall pay the fees and other charges for Products and Services ordered from Company as published at time of order. Company reserves the right to change rates without notice; any changes in price will take effect upon renewal of the existing hosting account, immediately for new purchases.

5.6.1. Customer agrees that the Company reserves the right to change its fees, features, and discount offerings and the Customer agrees to be bound by any changes of fee, feature, and/or discount.

5.7. The Company reserves the right to terminate this agreement, and to delete the Website from its hardware, immediately upon the occurrence of any of the following events:

5.7.1. Non payment of any charges due from Customer;

5.7.2. Breach of any term or condition of this agreement by Customer;

5.7.3. Commencement of any lawsuit or proceeding against Customer arising from or relating to its use of the Website, whether or not such suit names the Company as a party or seeks any recovery from the Company.

5.7.4. Payment for any charges is due at the time of signup and renewal respectively. All payments must be in U.S. Dollars. Accounts which have balances outstanding shall be deemed to be in default and subject to termination of service. Customer shall be responsible for all costs of collection, including reasonable attorney's fees and court costs, in event of a default for nonpayment of any amounts due the Company.

5.8 No refunds will be issued for dedicated servers or Virtual Private Server (VPS) platforms.

6. Indemnification of Provider/Relationship of Parties

6.1. Customer agrees to indemnify and hold the Company harmless from any lawsuit, claim, charge, or expense, including reasonable attorney fees and costs of defense, for any matter arising from or relating to Customer's Website provided hereunder.

6.2. Nothing contained herein shall be deemed to create a relationship between the Company and Customer in the nature of a partnership, joint venture, editor/publisher or otherwise. Both parties acknowledge and agree that the Company has no interaction with the data or substance of Customer's Website, except as necessary to maintain the Website.

7. Security/Software

7.1. Customer agrees to take all steps reasonable, necessary, and prudent to protect Customer's login ID and password.

7.2. Customer agrees not to attempt to undermine or cause harm to any server, software, system or customer of the Company.

7.3. Customer agrees to maintain Customers' computing equipment responsibly, including running virus software.

7.4. Uploading a virus to a Company server will result in account termination, service charges and/or prosecution.

7.5. Customer acknowledges that the Company cannot provide technical support for any software and/or script that the Customer installs, other than variable name changes. Customer also acknowledges that the Company does not supply technical support for Microsoft FrontPage, other than initial configuration. The Company supplies technical support for Web hosting issues only. The Company shall be the sole arbiter as to what constitutes a "Web host" issue.

7.6. ME Webhost's 90 risk free trial: At the end of the 90-day trial period, the $9 deposit is refunded back to you. If you decide to upgrade your account during the 30 Day trial period, ME Webhost will double your $9 deposit and give you $18.00 in free credit to use towards any hosting plan of your choice (Giga, Biz, and Vps-100 plans excluded; $9.00 credit applied to aforementioned plans only.)

8. Violation

Any attempt to undermine or cause harm to the Company server or another customer's Web presence is strictly prohibited. Any violation of the above Terms of Service will result in grounds for account termination, with no refunds given; the Company reserves the right to remove any account without prior notice. Violation of these Terms of Service may result in legal action, service charges or a combination thereof.

9. Confidentiality

Customer acknowledges that by reason of their relationship, both the Customer and the Company may have access to certain products, information and materials relating to the other part's business, which may include business plans, customers, software technology, and marketing plans that are confidential and of substantial value to either party, respectively, and which value would be impaired if such information were disclosed to third parties. Consequently, both the Company and the Customer agree that it will not use in any way for its own account or for the account of any third part, nor disclose to any third part, any such information revealed to it by either part, as the case may be.

The Customer and the Company further agrees that each will take every appropriate precaution to protect the confidentiality of such information. In the vent of termination of this agreement, there shall be no use or disclosure by either party of any such confidential information in its possession, and all confidential documents shall be returned to the rightful owner, or destroyed. The provisions of this section shall survive the termination of the agreement for any reason. Upon any breach or threatened breach of this section, either party shall be entitled to injunctive relief, which relief will not be contested by the Customer or the Company.

10. Refusal of Service

10.1. The Company reserves the right to refuse or cancel service in its sole discretion with no refunds.

10.2. If any of these Terms of Service are failed to be followed it will result in grounds for immediate account deactivation.

11. Disclaimer

11.1. USE OF THE COMPANY'S SERVICES AND PRODUCTS IS AT CUSTOMER'S SOLE RISK. NEITHER THE COMPANY NOR ITS EMPLOYEES, AGENTS, RESELLERS THIRD PARTY INFORMATION PROVIDERS, MERCHANTS LICENSERS OR THE LIKE, MAKE ANY WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, THAT THE COMPANY'S SERVICES AND PRODUCTS WILL NOT BE INTERRUPTED OR BE ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MIGHT BE OBTAINED FROM THE USE OF THE COMPANY'S SERVICES AND PRODUCTS OR AS TO THE ACCURACY, OR RELIABILITY OF ANY INFORMATION SERVICE OR MERCHANDISE CONTAINED OR PROVIDED THROUGH THE COMPANY'S SERVICE, UNLESS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT. THIS INCLUDES LOSS OF DATA, WHETHER RESULTING FROM DELAYS, ON DELIVERIES, WRONG DELIVERY, AND ANY AND ALL SERVICE INTERRUPTIONS CAUSED BY THE COMPANY AND ITS EMPLOYEES OR OTHER CAUSES.

11.2. THE SOLE CUMULATIVE LIABILITY OF THE COMPANY FOR ALL CLAIMS MADE BY THE CUSTOMER, OR ANY OTHER PARTY, REGARDLESS OF FORM, INCLUDING ANY CAUSE OF ACTION BASED ON CONTRACT, TORT OR STRICT LIABILITY, SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES AND CHARGES PAID TO THE COMPANY BY THE CUSTOMER.

11.3. The Company reserves the right to revise or change these Terms of Service at any time.

11.4. This Agreement shall be governed in all respects under the laws of the State of Minnesota applicable to contracts made, accepted and performed wholly in Minnesota, without application to principles of conflict of laws, and the Customer and the Company agree that the sole venue and jurisdiction for any disputes arising from this Agreement shall be the appropriate federal or state court located in the State of Minnesota.

11.5 The Company reserves the right, at its sole discretion, to change, modify or otherwise alter these Terms and Conditions at any time. Unless otherwise indicated, amendments will become effective immediately. Please review these Terms and Conditions periodically. Your continued use of the Site following the posting of changes and/or modifications will constitute your acceptance of the revised Terms and Conditions and the reasonableness of these standards for notice of changes unless you offer different terms that are accepted by Company.

12. Tree Planting Initiative Addendum.

12.1 The Company will match client's monthly hosting expenditures with trees in a ratio of one (1) dollar per one (1) tree. Ratio calculations are rounded to the nearest dollar. The Company may at its sole discretion withhold funds for donation on the basis of suspected fraud, charge-back potential or any other reason.

12.2 The Company in conjunction with its selected charity partners will plant the agreed number of trees, such number to be agreed on in paragraph 12.1 (above) and subject to seasonal conditions, location suitability and partner availability and may be anywhere in the world. All charties, partner selection, locations, timing of planting will be at the discretion of the company within specified planting seasons which are set by its planting partners. The donor assumes no ownership of trees or projects. Where possible the Company will endeavour to plant trees in projects with public access.

12.3 All carbon offset calculations are made on a best available data, basis based on models, data and scientific knowledge available at the time of calculation. In the event of any change in these, the Company will not be liable for any shortfall.

12.4 If any provision of this Agreement is breached by the Client, this right to use any associated "Green" artwork or promotional material may be withdrawn and the Client agrees to cease any further use. The Artwork and the term is the Company’s property with no rights transferring to the Client.