Terms

The following terms and conditions (these "Terms") govern the provision by MODAL, INC. ("Company") of the services and/or products (referred collectively herein as "Services and Products") described on the Services Order Form, the Service Level Agreement and Service Exhibit attached hereto (collectively the "Service Descriptions") and defined in any of the Company's product support listing, to the customer ("Customer") identified on the Service Descriptions. The Service Descriptions, these Terms and the attachments and any addenda hereto, executed with respect to the Services and Products, are referred to herein, collectively, as this "Agreement." Our Hosting Services 1. Maximum Hard Disk Space. Customer will be provided with the amount of disk space stated in either their dedicated quote or corresponding plan. Disk space and usage are monitored by MODAL, INC., when possible quotas are soft and responsible overages should not impair Customer's ability to access said disk space. Customers are responsible for purchasing additional disk space beyond that detailed in their "Plan" or to remove files in order to bring their usage with their Plans's limit. 2. Jurisdiction and Jurisdictional Disputes. MODAL, INC. is a Virginia corporation. The parties recognize that MODAL, INC. is under the legal jurisdiction of the State of Virginia, and US federal law. The parties expressly recognize that, where MODAL, INC. is acting solely as Customer's Host, MODAL, INC. is not engaged in, and is not actively soliciting, interstate or international commerce for said Customer. Where MODAL, INC. is a named party to any type of dispute or litigation involving any acts by Customer that affect out-of-state persons or entities, Customer agrees that it shall indemnify, hold MODAL, INC. harmless, defend MODAL, INC. and challenge the jurisdiction of out of state authorities over MODAL, INC. 3. Storage, Backups and Internet Link. MODAL, INC. shall store Customer's Web Sites and Email messages on MODAL, INC's servers. The parties expressly recognize that Internet servers and links are susceptible to crashes and down time. MODAL, INC. warrants that it shall maintain a consistent link with the Internet, but MODAL, INC. cannot and does not warrant that it shall maintain a continuous and uninterrupted link. MODAL, INC. does monitor all services on our servers at minimum of 60-minute intervals. 4. Maintenance. MODAL, INC. may, at its own discretion, temporarily suspend all service for the purpose of repair, maintenance or improvement of any of its systems. However, MODAL, INC. shall provide prior notice where it is reasonably practicable under the circumstances, and shall restore service as soon as is reasonably practicable. Customer shall not be entitled to any setoff, discount, refund or other credit, in case of any service outage which is beyond MODAL, INC's control or which is reasonable in duration. 5. Security. The parties expressly recognize that it is impossible to maintain flawless security, but MODAL, INC. shall take reasonable steps to prevent security breaches in server interactions with Customer and security breaches in MODAL, INC's server interaction with resources or users outside of any firewall that may be built into MODAL, INC's server. Customer is solely responsible for any damage caused by unauthorized access, and Customer indemnifies and holds MODAL, INC. harmless for any compromise of Customer's security that resulted from their own actions. 6. Privacy. Message and data encryption is possible on MODAL, INC.'s servers, however Customer is solely responsible for encoding its Web Site and Emails to conform with generally accepted encryption standards, and Customer indemnifies and holds MODAL, INC. harmless for any compromise of Customer's encryption method. 7. Software updates and installations. MODAL, INC. or a designated authorized party shall perform all system administrative software updates and installations for web servers, email servers, and all related software systems. Client Responsibilities By submitting the online order form, entering into an agreement after a quote, accepting an invoice or taking presence on a Modal, Inc. server, the Customer hereby agrees to the following: 1. Customer agrees to pay for hosting services rendered in advance of each monthly service term. 2. Customer agrees to a no-refund policy in advance. Setup fees and monthly service fees are non-refundable. 3. Server charges will be incurred immediately at signup and are prorated by 0-3 days to allow for server provisioning and delivery. 4. 30 day non-Payment of services shall result in a 15-day notice of disconnection. All payment failures must be cured within 15 days of notice. Customers failing to secure payment within 15 days of notice will incur service interruption and a $100 reconnection fee. 5. In same cases, clients are extended the ability to pay by check, bank draft or money order. One incidence of being 30 days late will require a credit card number to be on file. This credit card will be charged the full amount at day 45 if payment by other methods has not been received. Failure to receive full payment by day 45 will result in a final, 5 day notice. Customers failing to secure payment within these 5 days will have their accounts removed from shared servers and in the case of dedicated servers, the servers will be powered down. 6. In case of dedicated server plans, the failure to notify us of root password changes when an account is past due 45 days, will result in the powering down of those servers. 7. Service Cancellations must be submitted via email at info@modalinc.com at least 10 days before your next monthly billing cycle or you will be non-refundably charged the full amount for the following month. 8. Company is not responsible for data integrity on equipment reclaimed for non-payment. 9. Customer agrees not to engage in activity that violates federal (United States), state (Virginia) or local (Loudoun County) laws applicable to the service terms described herein. 10. Company reserves the right to discontinue service to any subscriber it deems, in its sole discretion, violates any condition of service including the Acceptable Use Policy and Terms of Services. Additional Terms Additionally, in consideration for hosting services to be delivered, Customer agrees to be bound to the following terms: 1. Indemnification. Customer agrees to indemnify and hold harmless Company and the employees and agents of Company (each an "Indemnified Party") against any losses, claims, damages, liabilities, penalties, actions, proceedings or judgments (collectively, "Losses") to which an Indemnified Party may become subject and which Losses arise out of, or relate to this Agreement or Customer's use of the Services and Products, and will reimburse an Indemnified Party for all legal and other expenses, including reasonable attorneys' fees incurred by such Indemnified Party in connection with investigating, defending or settling any Loss whether or not in connection with pending or threatened litigation in which such Indemnified Party is a party. 2. Limitation on Company Liability. Company shall not be deemed to be in default of any provision of this Agreement or be liable for any failure of performance of the Services and Products to Customer resulting, directly or indirectly, from any (i) weather conditions, natural disasters or other acts of God, (ii) action of any governmental or military authority, (iii) failure caused by telecommunication or other Internet provider, or (iv) other force or occurrence beyond its control. The exclusive remedy against Company for any damages whatsoever to Customer arising out of or related to this Agreement shall be the refund of the fees paid by Customer to Company with respect to the then current term of this Agreement. COMPANY SHALL NOT BE LIABLE FOR (i) ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF PROFITS OR LOSS OF REVENUE RESULTING FROM THE USE OF THE COMPANY'S SERVICES AND PRODUCTS BY CUSTOMER OR ANY THIRD PARTIES, OR (ii) ANY LOSS OF DATA RESULTING FROM DELAYS, NONDELIVERIES, MISDELIVERIES OR SERVICE INTERRUPTIONS COMPANY PROVIDES THE SERVICES AND PRODUCTS AS IS, WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED COMPANY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR THE SELECTION, USE AND SUITABILITY OF THE SERVICES AND PRODUCTS AND COMPANY SHALL HAVE NO LIABILITY THEREFORE. 3. Arbitration. ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS CONTACT OR ANY BREACH THEREOF IN EXCESS OF $250.00 SHALL BE SETTLED BY ARBITRATION IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION AND JUDGMENT UPON THE AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. 4. Notices. Unless otherwise specified herein, any notices or other communications required or permitted hereunder shall be sufficiently given if in writing and delivered personally or sent by facsimile transmission, internationally recognized overnight courier, registered or certified mail, to the address or facsimile number of Customer as set forth in the Service Descriptions or Company as set forth below. Such notices or other communications shall be deemed received (i) on the date delivered, if delivered personally, (ii) on the business day (or, if international, on the second business day) after being sent by an internationally recognized overnight air courier or (ii) five days after being sent, if sent by first class registered mail, return receipt requested. MODAL, INC., 42795 Freedom Street, South Riding, VA 20152. 5. MODAL, INC. shall not be liable for delays or defaults. MODAL, INC. shall not be liable for delays or defaults in furnishing goods or services hereunder, if such delays or defaults on the part of MODAL, INC. are due to: 1. Acts of God or of a public enemy; 2. Acts of the United States or any state or political subdivision thereof; 3. Fires, severe weather, floods, earthquakes, natural disasters, explosions or other catastrophes; 4. Embargoes, epidemics or quarantine restrictions; 5. Shortage of goods, labor strikes, slowdowns, differences with workmen or labor stoppages of any kind; 6. Delays of supplier or delay of transportation for any reason; 7. Causes beyond the control of MODAL, INC. in furnishing items or services including, but not limited to, breakdown or failure of machinery or equipment, or delay in Client reporting problems or furnishing information or materials. Acceptance of delivery of goods or services shall constitute a waiver and release of MODAL, INC. by Client for any claim for damages, setoff, discount or other liability on account of delay. 6. Third Party Transactions at Client's Peril. The parties expressly recognize that MODAL, INC. does not operate, control or endorse any information, products or services on the Internet, and that any entities that do offer such information, products or services are not affiliated with MODAL, INC. MODAL, INC. does not make any express or implied warranties, representations or endorsements TO CLIENT OR ANY THIRD PARTY whatsoever with regard to any information, products or services provided through MODAL, INC. AND OBTAINED OR CONTRACTED OVER the Internet, including, without limitation, warranties of: 1) MERCHANTABILITY; 2) FITNESS FOR A PARTICULAR PURPOSE; 3) EFFORT TO ACHIEVE PURPOSE; 4) QUALITY; 5) ACCURACY; 6) NON INFRINGEMENT AND 7) TITLE. MODAL, INC. shall not be liable TO CLIENT OR ANY THIRD PARTY for any cost or damage arising either directly or indirectly from any transaction involving third parties' information, products or services. Some jurisdictions do not permit the exclusion or limitation of liability for consequential or incidental damages, and, as such, some portion of the above limitation may not apply to Client. In such jurisdictions, MODAL, INC. 's liability is limited to the greatest extent permitted by law. 7. Downloading of Data or Files at Client's Peril. The parties expressly recognize that MODAL, INC. cannot and does not guarantee or warrant that files available for downloading through MODAL, INC. will be free of infection, viruses, worms, Trojan horses or other code that manifests contaminating or destructive properties. Client agrees that it shall be solely responsible for implementing sufficient procedures to satisfy Client's particular requirements for accuracy of data input and output, and for maintaining a means external to MODAL, INC. for the reconstruction of any lost data. The parties also expressly recognize that the Internet contains unedited materials, some of which are unlawful, indecent, or offensive to Client, and access to such materials by Client is done at Client's sole risk. 8. Miscellaneous. Failure by either Company or Customer to enforce any of the provisions of this Agreement or any rights with respect hereto or the failure to exercise any option provided hereunder shall in no way be considered to be waiver of such provisions, rights or options, or to in any way affect the validity of this Agreement. If one or more of the provisions contained in this Agreement are found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.