Terms and Conditions

Between:

Livehost eXtreme

And

CUSTOMER:

1. Provision of Services.

1.1 Services to be provided. Under the terms and conditions of this Agreement, LiveHost eXtreme provides, and CUSTOMER accepts, web hosting services and/or design/development (“Services”). The Services are provided to CUSTOMER pursuant to LiveHost eXtreme’s Acceptable Use Policy (as modified by LiveHost eXtreme from time to time). CUSTOMER agrees that it will access the Services available only pursuant to terms of use (“Terms of Use”) that are consistent with such Acceptable Use Policy.

1.2 Services Introduction. The parties agree to work together in an expeditious manner to provide CUSTOMER with LiveHost eXtreme ’s web hosting system through which LiveHost eXtreme provides the Services. CUSTOMER will provide to LiveHost eXtreme information and materials, such as the domain name, email addresses and passwords (“User Information”) necessary for LiveHost eXtreme to perform the set-up and other initial services to the LiveHost eXtreme System. CUSTOMER will perform any necessary changes to the CUSTOMER “User Information” before CUSTOMER will have access to the Services.

1.3 Privacy. LiveHost eXtreme has a corporate policy to respect the privacy of its customers and their email messages that are transmitted through the Services. LiveHost eXtreme will only access and disclose information as necessary or appropriate to cooperate with law enforcement or other legal authorities, comply with applicable laws, regulations and government orders or requests, or in legal or administrative proceedings where such information is relevant, or to operate or maintain its systems or to protect itself or its customers.

1.4 Compliance with Laws. Each party agrees to comply with all applicable laws, rules and regulations, including any Internet regulations or policies and applicable export laws, in its performance under this Agreement.

1.5 Suspension or Termination. If LiveHost eXtreme becomes aware of or suspects any violation of the Terms of Use by CUSTOMER or any User, LiveHost eXtreme first will attempt to notify CUSTOMER and provide reasonable detail of such violation. The parties will use best efforts to promptly resolve the matter. However, LiveHost eXtreme has a policy of terminating any customer or user of LiveHost eXtreme’s Services that is a repeat violator or in other appropriate circumstances, and LiveHost eXtreme reserves the right to immediately suspend or terminate the provision of Services to a CUSTOMER for violation of the Terms of Use, in conformance with such policy or otherwise as reasonably necessary to protect LiveHost eXtreme ’s interests. In addition, LiveHost eXtreme reserves the right to assess a minimum charge of £85.00 per repeat violation to cover costs for investigations, suspensions or terminations for the causes outlined in this Agreement or the Terms of Use, and to take any additional actions it considers appropriate under the circumstances, including taking action to recover additional costs and expenses of identifying offenders and removing them from the Services and for any harm done to the LiveHost eXtreme System and as otherwise permitted by law. CUSTOMER will cooperate with LiveHost eXtreme in investigations and other actions taken for suspected or known violations of the Terms of Use, including any incidents of spam.

1.6 Modification of Services. LiveHost eXtreme may modify the features and functionality of the LiveHost eXtreme System from time to time. However, LiveHost eXtreme will not modify the LiveHost eXtreme System in a manner that would significantly affect Users’ use of or ability to use the Services, without providing reasonable prior notice to CUSTOMER of any such modification, no less than thirty (30) days if such is at all practicably possible.

1.7 Branding of Service. If applicable, CUSTOMER will provide LiveHost eXtreme with all text and images (“Branding Materials”) necessary for LiveHost eXtreme to brand Customer’s web pages. CUSTOMER warrants and represents to LiveHost eXtreme that CUSTOMER has full power and authority to provide to LiveHost eXtreme, and to authorise LiveHost eXtreme’s use of, the Branding Materials provided by CUSTOMER for branding the Service, and will defend and indemnify LiveHost eXtreme with respect to any claims arising from LiveHost eXtreme’s use of such Branding Materials. CUSTOMER grants to LiveHost eXtreme a non-exclusive, non-transferable, worldwide, royalty-free, irrevocable (during the term of the Agreement) license to reproduce, display, perform, modify, prepare derivative works of and otherwise use the Branding Materials for the purpose of branding Customer’s web hosting service. CUSTOMER’s approval will be deemed given if CUSTOMER does not provide to LiveHost eXtreme notice of its rejection of the branded web hosting service within twenty-four (24) hours of LiveHost eXtreme ’s provision of it.

1.8 Proprietary Rights. Other than the license granted in Section 1.7, CUSTOMER retains all proprietary rights it has in and to the Branding Materials. LiveHost eXtreme retains all proprietary rights in and to the LiveHost eXtreme Services and all development tools, routines, subroutines, applications, software and other materials (not including the Branding Materials) that LiveHost eXtreme uses in connection with branding the Web Mail Page or in providing the Services. As between CUSTOMER and LiveHost eXtreme, CUSTOMER owns all right, title and interest in the User Information, subject to LiveHost eXtreme’s right to use User Information in performing under, or as otherwise expreSSLy permitted by, this Agreement. Further, as between CUSTOMER and LiveHost eXtreme, CUSTOMER will be responsible for all acts and omissions of Users.

1.9 Support. LiveHost eXtreme will provide email support to CUSTOMER seven (7) days a week, replies will be sent within twenty four (24) hours where practicable. CUSTOMER is responsible for support to Users and for all other support not otherwise specified herein to Users.

1.10 Storage and Bandwidth Capacity. Each “plan” has the capacity as specified in the individually tailored Services and Fee Schedule. LiveHost eXtreme will notify any User that User’s plan is approaching or exceeds the maximum limit. Thereafter, if the User exceeds the maximum capacity, LiveHost eXtreme may automatically upgrade USER to a higher-level plan, at LiveHost eXtreme’s discretion or at the CUSTOMER’S request or suspend the account until the appropriate fee has been paid.

1.11 Software License. If LiveHost eXtreme provides any software (“Software”) to CUSTOMER under this Agreement, CUSTOMER has only a non-exclusive, non-transferable, royalty-free limited license to use the Software solely in connection with the Services during the term of this Agreement. LiveHost eXtreme and its licensors retain all rights, title and interest in and to the Software. Except as permitted by applicable law, CUSTOMER may not decompile, reverse engineer, disassemble, modify, rent, lease, loan, distribute, assign, transfer or create derivative works of the Software. CUSTOMER may not remove, deface or obscure any of LiveHost eXtreme’s or its licensors’ proprietary rights notices on or in the Software or on output generated by the Software. If a license agreement is included with any Software provided hereunder, CUSTOMER is licensed with respect to such Software pursuant to that license to the extent inconsistent with this provision. Any violation of the Software license constitutes a material breach of this Agreement.

2. Pricing and Payment.

2.1 General Pricing and Payment Terms. All amounts payable under this Agreement are inclusive of VAT where applicable or any other taxes associated with the provision of Services or of CUSTOMER’s access to or use of the LiveHost eXtreme System or Services. CUSTOMER is responsible for payment of any and all such taxes (excluding taxes based on LiveHost eXtreme’s net income).

2.2 Reports and Audit. If applicable, each party will submit with each of its payment to the other party a detailed report of the calculation of each such payment. Each party will retain records relevant to its calculations of the payments made to the other party during the term of this Agreement and for a two (2) year period thereafter. Each party may, at its expense, acting through a certified public accountant, examine and audit such records at all reasonable times, on at least ten (10) days notice to the other party, but no more than once every six (6) months.

3. Disclaimer of Warranties.

3.1 No Warranties. THE SERVICES AND SOFTWARE ARE PROVIDED, AND THE LiveHost eXtreme SYSTEM IS MADE AVAILABLE, BY LiveHost eXtreme TO CUSTOMERS “AS IS.” LiveHost eXtreme AND ITS SUPPLIERS MAKE NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, REGARDING THE SERVICES OR THE LiveHost eXtreme SYSTEM AND SPECIFICALLY DISCLAIM THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND AGAINST INFRINGEMENT, TO THE MAXIMUM EXTENT POSSIBLE BY LAW.

3.2 Internet Usage. LiveHost eXtreme and its suppliers make no warranties regarding the quality, reliability, timeliness or security of the Services or the LiveHost eXtreme System or that the Services, the Software or the LiveHost eXtreme System will be uninterrupted or error free. LiveHost eXtreme and its suppliers assume no responsibility or liability for the deletion or failure to store, or to store properly, email messages. CUSTOMERS assume the entire risk in downloading or otherwise accessing any data, files or other materials obtained from third parties as part of the Services or by means of the LiveHost eXtreme System, even if CUSTOMER has paid for virus protection services from LiveHost eXtreme.

3.3 CUSTOMER’S Responsibilities. CUSTOMER shall be solely responsible for any warranties provided to Users with respect to the Services or the LiveHost eXtreme System.

4. Limitation of Liability.

4.1 NO CONSEQUENTIAL DAMAGES. IN NO EVENT WILL EITHER PARTY, OR ITS SUPPLIERS, BE LIABLE TO THE OTHER PARTY, OR TO ANY THIRD PARTY, FOR CONSEQUENTIAL, EXEMPLARY, INDIRECT, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, EVEN IF THE PARTY OTHERWISE LIABLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LiveHost eXtreme WILL NOT BE LIABLE FOR ANY ACTUAL OR ALLEGED INFRINGEMENT BY ANY THIRD PARTY MATERIALS AVAILABLE THROUGH THE SERVICES.

4.2 Force Majeure. LiveHost eXtreme is not responsible for any delays, errors, failures to perform, interruptions or disruptions in the Services or the LiveHost eXtreme Systems (each a “Force Majeure Event”) caused by or resulting from any act, omission or condition beyond LiveHost eXtreme’s reasonable control, whether or not foreseeable or identified, including without limitation acts of God, strikes, lockouts, riots, acts of war, governmental regulations, fire, power failure, earthquakes, severe weather, floods or other natural disaster or Customer’s, User’s or any third party’s hardware, software or communications equipment or facilities.

4.3 Limited Remedy. In the event of any unplanned disruption of provision of the Services or availability of the LiveHost eXtreme System during which Users are unable to access or use the LiveHost eXtreme Services due to a confirmed problem in the LiveHost eXtreme System and not resulting from any Force Majeure Event (“System Outage”), CUSTOMER’s sole and exclusive remedy is refund of a pro rata portion of the price paid for the affected Services during the period of the System Outage if such period lasted for a continuous twenty-four (24) hour period or longer. CUSTOMER AGREES THAT THIS SECTION STATES CUSTOMER’S SOLE REMEDY AND LiveHost eXtreme ’S EXCLUSIVE LIABILITY FOR ANY SYSTEM OUTAGE OR OTHER SERVICE DISRUPTION. In any event, LiveHost eXtreme ’s entire liability, and CUSTOMER’s exclusive remedy, under this Agreement for any damages from any cause whatsoever, regardless of form or action, whether in contract, negligence or otherwise, will in no event exceed an amount equal to the amount paid by CUSTOMER for the Services in the calendar month in which the act or omission that gave rise to the liability occurred, to the maximum extent allowed by law.

5. Confidential Information.

Each party agrees to keep confidential and to use only for purposes of performing under this Agreement, any proprietary or confidential information of the other party disclosed pursuant to this Agreement which is appropriately marked as confidential or which could reasonably be considered of a proprietary or confidential nature (“Confidential Information”), and, except as otherwise permitted by this Section, the terms of this Agreement and all negotiations relating thereto (but not the existence of this Agreement generally). The obligation of confidentiality shall not apply to information which is publicly available through authorised disclosure, is known by the receiving party at the time of disclosure as evidenced in writing, is rightfully obtained from a third party who has the right to disclose it, or which is required by law to be disclosed. All Confidential Information remains the property of the disclosing party. Upon any termination of this Agreement, the receiving party will return all Confidential Information of the disclosing party, and all copies thereof, in the possession or control of the receiving party unless otherwise provided in this Agreement. During the term of this Agreement, either party may use the other party’s name and may reference this Agreement in news releases, articles, brochures, marketing materials, advertisements and other publicity or promotions, subject to the other party’s prior written approval, which approval will not be unreasonably withheld, conditioned or delayed.

6. Indemnification.

6.1 Subject to Section 6.3 below, LiveHost eXtreme will defend any third-party suit or action against CUSTOMER to the extent such suit or action is based on a claim that the Services infringe any valid United Kingdom patent, copyright, trade secret or other proprietary right, and LiveHost eXtreme will pay those damages and costs finally awarded against CUSTOMER in any monetary settlement of such suit or action which are specifically attributable to such claim. These obligations do not include any claims to the extent they are based on use of the Services in violation of this Agreement or in combination with any other software or hardware, or any modification to the Services pursuant to CUSTOMER’s specifications. If any portion of the Services becomes, or in LiveHost eXtreme’s opinion is likely to become, the subject of a claim of infringement, then LiveHost eXtreme may, at its option and expense, (a) procure for CUSTOMER the right to continue using and reselling such Services or (b) replace or modify the Services so that they become non-infringing. The foregoing states LiveHost eXtreme’s entire liability for infringement claims.

6.2 CUSTOMER will defend, indemnify and hold LiveHost eXtreme harmless from and against any and all claims, actions or demands resulting from CUSTOMER’s marketing and use of the Services under this Agreement, except any claims, actions or demands for which LiveHost eXtreme is liable under Section 6.1.

6.3 The indemnity obligations set forth in this Section are contingent upon: (a) the Indemnitee giving prompt written notice to the Indemnitor of any such claim(s); (b) the Indemnitor having sole control of the defence or settlement of the claim; and (c) at the Indemnitor’s request and expense, the Indemnitee cooperating in the investigation and defence of such claim(s).

7. Termination.

7.1 Termination for Convenience. Either party may terminate this Agreement at any time, without cause, upon ninety (90) days prior written notice to the other party.

7.2 Termination Before Any Renewal Term. Either party may terminate this Agreement at the end of the Initial Term or any Renewal Term by providing no less than thirty (30) days prior written notice to the other party.

7.3 Termination for Breach. Either party may terminate this Agreement by giving to the other party written notice of such termination upon the occurrence of any of the following events: (i) the other party materially breaches or defaults in any of the material terms or conditions of this Agreement and fails to cure such breach or default within 30 days of receipt of written notice thereof, (ii) the other party makes any assignment for the benefit of creditors, is insolvent or unable to pay its debts as they mature in the ordinary course of business, or (iii) any proceedings are instituted by or against the other party in bankruptcy or under any insolvency laws or for reorganisation, receivership or dissolution.

7.4 Effect of Termination. Upon any notice of termination, LiveHost eXtreme will provide reasonable assistance to CUSTOMER in the migration of its web hosting system to a set-up as reasonably requested by CUSTOMER, and CUSTOMER agrees to pay for all Services rendered to CUSTOMER until the migration is complete. If termination of this Agreement is due to CUSTOMER’s breach, CUSTOMER will, in addition to payment of all Services fees, pay for LiveHost eXtreme’s assistance in such migration at LiveHost eXtreme’s then-current time and materials rate and will pay any out-of-pocket expenses incurred by LiveHost eXtreme in connection with such migration. After migration, LiveHost eXtreme may delete all stored email messages of CUSTOMER and Users on the LiveHost eXtreme System and will cease providing all Services and access by CUSTOMER and Users to the LiveHost eXtreme System. Within thirty (30) days of the later of termination of this Agreement or the date of migration completion, each party will pay if applicable, to the other all accrued and unpaid fees and charges. Upon any termination of this Agreement, CUSTOMER will immediately destroy all copies of the Software in its possession or under its control.

7.5 Survival. Sections 1.8, 2, 3, 4, 5, 6, 7.4, 7.5, and 8 and the Services and Fees Schedule (as to amounts accrued but unpaid) survive any expiration or termination of this Agreement.

8. Miscellaneous.

8.1 Notices. Notices under this Agreement must be in writing and will be deemed given when delivered personally, or by email or facsimile (with confirmation of receipt) or by conventional mail (registered or certified, postage prepaid with return receipt requested). Notices will be addressed to the parties at the addresses appearing at the top of this Agreement, but each party may change the address by written notice in accordance with this paragraph.

8.2 Assignment. This Agreement will be binding upon and inure to the benefit of the parties, their successors and permitted assigns. Neither party may transfer, sublicense or otherwise assign this Agreement or any of its rights or obligations hereunder without the other party’s prior written consent, which consent will not be unreasonably withheld. Notwithstanding the foregoing, either party may assign this Agreement (i) to any entity in which the party has a greater than fifty-percent (50%) equity ownership interest or of which the party has voting control, (ii) to any entity that buys fifty percent (50%) or more of that party’s stock or all or substantially all of that party’s assets, or (iii) as part of a merger, reorganisation or reincorporation.

8.3 Dispute Resolution. Any dispute, controversy or claim concerning or relating to this Agreement will be resolved in the following manner:

8.3.1 The parties agree to use all reasonable efforts to resolve the dispute through direct discussions. To that end, either party may give the other party written notice of any dispute not resolved in the normal course of business. Upon such notice, the parties will attempt in good faith to resolve the dispute promptly by negotiation between executives who have authority to settle the controversy and who are at a higher level of management than the persons responsible for administration of this Agreement. If the parties are unable to resolve the dispute by such means within thirty (30) days of the notice date, or such other time period as mutually agreed, then either party may commence arbitration with the appropriate bodies. The arbitration proceedings contemplated by this section will be as confidential and private as permitted by law.

Notwithstanding any of the foregoing, either party may request injunctive and/or equitable relief either from the arbitrators or from a court in order to protect the rights or property of the party, pending the resolution of the dispute by arbitration as provided hereunder.

8.4 General Provisions. This Agreement will be governed by and construed in accordance with the laws of the United Kingdom exclusive of its conflict of laws principles. Nothing contained in this Agreement is intended or is to be construed to create a partnership, joint venture or agency relationship between LiveHost eXtreme and CUSTOMER. If any provision of this Agreement is held invalid, illegal or unenforceable, such provision will be reformed only to the extent necessary and in such a manner to affect the original intention of the parties; all remaining provisions continue in full force and effect. Any failure by either party to strictly enforce any provision of this Agreement will not operate as a waiver of that provision or any subsequent default or breach of the same or a different kind.

PROHIBITED ACTIVITIES, INCLUDING BUT NOT LIMITED TO SEXUALLY ORIENTED PRODUCTS AND SERVICES, SCAMS, SPAMS, INFRINGEMENTS, OFFENSIVE, BIGOTED, HATE RELATED OR ILLEGAL ACTIVITIES. YOUR DUTY TO INDEMNIFY LiveHost eXtreme. LiveHost eXtreme COOPERATION WITH LAW ENFORCEMENT. (a) You agree that You will not at any time conduct Your business on any web sites with respect to which LiveHost eXtreme at any time provides Basic Services and/or Optional Services in any manner(s) that directly or indirectly offer, sell, lease, license, display, deliver, advertise, recommend, or promote any product(s), service(s), data, information, image(s), text and/or other web site content, which: (i) are unlawful or violates any applicable local, state, national or international law, ordinance or regulation having the force of law; (ii) are pornography or sexually oriented, profane, obscene, vulgar, offensive, lewd; (iii) are defamatory, libellous, slanderous, abusive, threatening or harassing towards others; (iv) are a sweepstakes, lottery, raffle, multi-level marketing program, chain letter or pyramid scheme; (v) are an unfair, unlawful or deceptive business practice; (vi) are racially or otherwise offensive, hateful, bigoted or intolerant; (vii) are in violation of any privacy or data protection right or law or discloses any personal information about or exploits in any manner children under the age of 18 years or third parties without their, or in the case of children, their parents’, prior written consent; (viii) infringe or violate any patent, copyright, trademark, trade secret, right of publicity or privacy or other proprietary right under the laws of any jurisdiction; (ix) are the basis for any allegation, claim or suit against You or any other party alleging product liability, breach of warranty, negligence, fraud, unlawful conduct, and/or any other claims or causes of action whatsoever; (x) transmit or deliver in any manner any material that contains viruses, worms, trojan horses, time bombs, nukes, cancelbots, and/or any other harmful or damaging software or other technology or the means for developing any of the above; (xi) advocate, promote and/or provide assistance in carrying out violence or any other unlawful activity against any persons or any governments, businesses or other entities; (xii) involve a significant risk of death or injury to any persons, or of damage to business or other entities or property in the event of an error or defect; (xiii) involve cruelty to animals; (xiv) are the subject of any government investigation or proceeding; (xv) are a weapon, or parts of or manuals for assembling any weapon, including but not limited to firearms, ammunition, explosives, grenades, bombs and caustic or other dangerous substances; (xvi) are any form(s) of gambling; (xvii) are any type(s) of intoxicant, alcoholic beverage, or illegal substance; (xviii) are not consistent with prevailing Internet "Netiquette" standards, as determined by LiveHost eXtreme in its sole discretion; or (xix); provide instruction in any activities listed in Section 4 (i) through 4 (xviii) above.

Date effective from: 28/06/2006