Welcome to Fusionapps.NET’s hosted application and server hosting solutions! This Agreement governs your purchase and use, in any manner, of all Web site hosting services (collectively, the “Services”) ordered by you and accepted by Fusionapps.NET (“Fusionapps”) and describes the terms and conditions that apply to such purchase and use of the Services (the “Order”). You must accept the terms of this Agreement in order to use the Services. If you have registered for co-location services, then this Agreement shall govern those services; provided, however, that your purchase and use of co-location services shall be governed further by the terms and conditions set forth in the Co-Location Services Addendum to this Agreement. BY REGISTERING FOR AND USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU HAVE THE POWER AND AUTHORITY TO ENTER INTO THE AGREEMENT, AND THAT YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED HEREIN AS WELL AS ALL POLICIES AND GUIDELINES INCORPORATED BY REFERENCE. Fusionapps reserves the right to change or modify any of the terms and conditions contained in this Agreement and any policy or guideline incorporated by reference at any time and from time to time in its sole discretion, and to determine whether and when any such changes apply to both existing and future customers. Any changes or modification will be effective upon posting of the revisions on the Fusionapps Web site (the “Site”). Fusionapps will post a notice of such changes or modifications to this Agreement on the Site for thirty (30) days. Fusionapps may post changes or modifications to referenced policies and guidelines without notice to you. Your continued use of the Services following Fusionapps’ posting of any changes or modifications will constitute your acceptance of such changes or modifications. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT DO NOT CONTINUE TO USE THE SERVICES AND IMMEDIATELY NOTIFY FUSIONAPPS OF YOUR TERMINATION OF THIS AGREEMENT IN THE MANNER DESCRIBED IN SECTION 1.2 BELOW.

1.1. Term. This Agreement shall be for an “Initial Term” as chosen by you at the time you register for the Services. This Agreement will be automatically renewed (the “Renewal Term”) at the end of the Initial Term for the same period as the Initial Term unless you provide Fusionapps with (a) notice of termination of the Services at least seven (7) days prior to the end of the Initial Term or the Renewal Term, whichever is then applicable, or (b) at least seven (7) days’ notice of a change in term selection. You must provide Fusionapps with notice by email. Upon receipt of your request, you will be asked to provide Fusionapps with sufficient customer identification information so that Fusionapps may properly identify you and your account and confirm your instructions.

1.2. Termination Policy. If you terminate your receipt of the Services prior to the end of the Initial Term or the Renewal Term, whichever is then applicable, Fusionapps shall not refund to you any fees paid in advance of such termination. Your termination request must be submitted to Fusionapps in the manner described in Section 1.1. Fusionapps may terminate this Agreement at any time and for any reason. If Fusionapps terminates this Agreement for any reason other than as a result of your material breach of this Agreement or any policies or guidelines incorporated by reference, then Fusionapps shall refund to you the pro-rata portion of pre-paid fees attributable to Services not yet rendered as of the termination date unless otherwise expressly provided herein. Any refunds will be processed using the original medium used for the original transaction. Fusionapps reserves the right to choose an alternate refund medium at their sole discretion.

1.3. Liability and Obligations on Termination. Should the Agreement expire or be terminated for any reason, Fusionapps will not be liable to you because of such expiration or termination for compensation, reimbursement or damages on account of the loss of prospective profits, anticipated sales, goodwill or on account of expenditures, investments, leases or commitments in connection with your business, or for any other reason whatsoever flowing from such termination or expiration. Any termination of this Agreement shall not relieve you of any obligations to pay fees and costs accrued prior to the termination date and any other amounts owed by you to Fusionapps as provided in this Agreement. Any refunds due to you will be submitted in a timely manner. Any refunds processed through a credit card merchant will be submitted in a timely manner but it is then the responsibility of the credit card merchant to process said refund in a timely manner. Any delays or issues regarding an already submitted re fund must be addressed with the credit card merchant. Fusionapps makes no warranties with regard to the time it takes a refund to be processed by a third party credit card merchant once Fusionapps has submitted said refund.

1.4. Charges. You agree to pay for all charges attributable to your use of the Services at the then current Fusionapps prices, which shall be exclusive of any applicable taxes. You shall be responsible for the payment of all federal, state, and local sales, use, value added, excise, duty and any other taxes assessed with respect to the Services, other than taxes based on Fusionapps’ net income. When submitting an Order, you shall provide us with an up-to-date physical address. You will also be responsible for keeping us advised of any other relevant contact details (including email addresses) which may be necessary so that we can easily notify you of information concerning the Services. You will be responsible for keeping all identification details, password details and other confidential information relating to the Services safe and secure and will notify us immediately if any unauthorized use of the Services or any breach of security, loss, theft or disclosure of and identification details, password details or confidential information.

1.5. Payment. All charges for Services must be paid in advance according to the then current price applicable to the Services. You agree that any supplemental charges, as described in the Order or any supplemental form or invoice, incurred by you in your use of the Services (“Supplemental Charges”) will be charged to your card. You must notify Fusionapps of any changes to your card account (including, without limitation, applicable account number or cancellation or expiration of the account), your billing address, or any information that may prohibit Fusionapps from charging your account. Fusionapps may also send periodic invoices to you for any applicable Supplemental Charges associated with your use of the Services. You agree to pay to Fusionapps the amount indicated in each invoice by the due date reflected on the invoice. If you fail to pay any fees and taxes within ten (10) days from the applicable due date for credit card or invoice payments, late charges of the lesser of one and one-half per cent (1.5%) per month or the maximum allowable under applicable law shall also become payable by you to Fusionapps. In addition, your failure to fully pay any fees and taxes within ten (10) days after the applicable due date will be deemed a material breach of this Agreement, justifying Fusionapps’ suspension of its performance of the Services and/or termination of this Agreement. You are responsible for any fees associated with reinstated Services. Any such termination would not relieve you from paying past due fees plus interest. In the event of collection enforcement, you will be liable for any costs associated with such collection, including, without limitation, reasonable attorneys’ fees, court costs and collection agency fees.

2.1. Applicable Policies and Guidelines. The Fusionapps Acceptable Use Policy and Privacy Statement (the “Usage Guidelines”) govern the general policies and procedures for use of the Services. The Usage Guidelines are posted on the Site and may be updated from time to time. YOU SHOULD CAREFULLY READ THE USAGE GUIDELINES. BY USING THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF THE USAGE GUIDELINES AND ANY MODIFICATIONS THERETO. FUSIONAPPS RESERVES THE RIGHT TO TERMINATE OR SUSPEND YOUR ACCOUNT FOR ANY VIOLATION OF THE USAGE GUIDELINES OR THIS AGREEMENT.

2.2. Material and Product Requirements. You must ensure that all material, data or equipment supplied or placed on Fusionapps’ equipment is in a condition that is “server-ready,” which is in a form requiring no additional manipulation by Fusionapps. In addition, Fusionapps will make no further modification to any third party or custom software received from you. Fusionapps will make no effort to validate any of this information for content, correctness or usability. In the event that your material is not “server-ready”, Fusionapps has the option at any time to reject this material. Fusionapps will notify you of its refusal of the material and afford you the opportunity to amend or modify the material to satisfy the needs and/or requirements of Fusionapps.

2.3. Bandwidth, Storage, and E-Mail Usage. You agree that use of the Services hereunder will not exceed the bandwidth limits that are specified. If you use any bandwidth in excess of the agreed upon number of megabytes or gigabytes (as the case may be) per month or if you exceed email storage and attachment size limitations, Fusionapps may, in its sole discretion, assess you with additional charges, suspend the performance of the Service, or terminate this Agreement. In the event that Fusionapps elects to take any corrective action, you will not be entitled to a refund of any unused pre-paid fees. Fusionapps shall assess additional charges against the credit card on file for your account.

3.1. Your License Grant to Fusionapps. You hereby grant to Fusionapps a non-exclusive, worldwide, and royalty-free license for the Initial Term and the Renewal Term, if applicable, to edit, modify, adapt, translate, exhibit, publish, transmit, participate in the transfer of, reproduce, create derivative works from, distribute, perform, display, and otherwise use any content supplied by you as necessary for the purposes of rendering and operating the Services to you under this Agreement. You expressly (a) grant to Fusionapps a license to cache materials distributed or made available for distribution via the Services, including content supplied by third parties, and (b) agree that such caching is not an infringement of any of your intellectual property rights or any third party’s intellectual property rights.

3.2. Your Warranties and Representations to Fusionapps. You warrant, represent, and covenant to Fusionapps that (a) you are at least eighteen (18) years of age; (b) you possess the legal right and ability to enter into this Agreement; (c) you will use the Services only for lawful purposes and in accordance with this Agreement and all applicable policies and guidelines; (d) you will be financially responsible for the use of your account; (e) you have acquired or will acquire all authorization(s) necessary for hypertext links to third-party Web sites or other content; (f) you have verified or will verify the accuracy of materials distributed or made available for distribution via the Services, and (g) your content does not and will not infringe or violate any right of any third party (including any intellectual property rights) or violate any applicable law, regulation or ordinance.

3.3. Fusionapps Materials and Intellectual Property. All materials, including but not limited to any computer software (in object code and source code form), data or information developed or provided by Fusionapps or its suppliers or agents pursuant to this Agreement, and any know-how, methodologies, equipment, or processes used by Fusionapps to provide the Services to you, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights inherent therein and appurtenant thereto shall remain the sole and exclusive property of Fusionapps or its suppliers. Fusionapps shall also maintain and control ownership of all Internet protocol (“IP”) numbers and addresses that may be assigned to you by Fusionapps. Fusionapps reserves, in its sole discretion, the right to change or remove any and all such IP numbers and addresses.

4.1. Investigation of Violations. Fusionapps may investigate any reported violation of this Agreement, its policies or any complaints and take any action that it deems appropriate and reasonable under the circumstance to protect its systems, facilities, customers and/or third parties. Fusionapps will not access or review the contents of any e-mail or similar stored electronic communications except as required or permitted by applicable law or legal process.

4.2. Actions. Fusionapps reserves the right and has absolute discretion to restrict or remove from its servers any content that violates this Agreement or Usage Guidelines, or is otherwise objectionable or potentially infringing on any third party’s rights or in violation of any laws. In the event of becoming aware of any possible violation by you, Fusionapps may immediately take corrective action, including, but not limited to, (a) issuing warnings, (b) suspending or terminating the Service, (c) restricting or prohibiting any and all uses of content hosted on Fusionapps’ systems, and/or (d) disabling or removing any hypertext links to third-party Web sites, any of your content distributed or made available for distribution via the Services, or other content not supplied by Fusionapps which, in Fusionapps’ sole discretion, may violate or infringe any law or third-party rights or which otherwise exposes or potentially exposes Fusionapps to civil or criminal liability. It is Fusionapps’ policy to terminate repeat infringers. The above stated rights of action, however, do not obligate Fusionapps to monitor or exert editorial control over the information made available for distribution via the Services. In the event Fusionapps takes corrective action due to such possible violation, Fusionapps shall not be obligated to refund to you any fees paid in advance of such corrective action.

4.3. Disclosure Rights. To comply with applicable laws and lawful governmental requests, to protect Fusionapps’ systems and customers, or to ensure the integrity and operation of Fusionapps’ business and systems, Fusionapps may access and disclose any information it considers necessary or appropriate, including, without limitation, user profile information (i.e., name, e-mail address, etc.), IP addressing and traffic information, usage history, and content residing on Fusionapps’ servers and systems. Fusionapps also reserves the right to report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. To the extent any inconsistency exists between any terms of Fusionapps’ Privacy Statement and Fusionapps’ right to disclose under this section, Fusionapps’ right to disclose under this section will control.

You acknowledge and agree that Fusionapps exercises no control over, and accepts no responsibility for, the content of the information passing through Fusionapps’ host computers, network hubs and points of presence, or the Internet. ALL SERVICES PERFORMED HEREUNDER ARE PERFORMED “AS IS” AND WITHOUT WARRANTY AGAINST FAILURE OF PERFORMANCE INCLUDING, WITHOUT LIMITATION, ANY FAILURE DUE TO COMPUTER HARDWARE OR COMMUNICATION SYSTEMS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, FUSIONAPPS DOES NOT MAKE AND HEREBY DISCLAIMS, AND YOU HEREBY WAIVE ALL RELIANCE ON, ANY REPRESENTATIONS OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING THE SERVICES, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE.

6.1. Limitations. IN NO EVENT SHALL FUSIONAPPS OR ITS SUPPLIERS HAVE ANY LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF INFORMATION DISTRIBUTED OR MADE AVAILABLE FOR DISTRIBUTION VIA THE SERVICES THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES. NEITHER FUSIONAPPS NOR ITS SUPPLIERS SHALL HAVE LIABILITY WITH RESPECT TO FUSIONAPPS’ OBLIGATIONS UNDER THIS AGREEMENT, THE ADDENDUM OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF FUSIONAPPS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE FOREGOING LIMITATION OR EXCLUSIONS MAY NOT APPLY TO YOU. IN ANY EVENT, THE LIABILITY OF FUSIONAPPS AND ITS SUPPLIERS TO YOU FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO FUSIONAPPS BY YOU UNDER THIS AGREEMENT AND THE ADDENDUM DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. THE FEES FOR THE SERVICES SET BY FUSIONAPPS HEREUNDER HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY, YOU HEREBY RELEASE FUSIONAPPS AND ITS SUPPLIERS FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIM IN EXCESS OF THE LIMITATION STATED IN THIS SECTION 6.1.

6.2. Interruption of Service. Except as may be otherwise outlined in the Site’s Service Level Agreement, you hereby acknowledge and agree that Fusionapps and its suppliers will not be liable for any temporary delay, outages or interruptions of the Services. Further, Fusionapps shall not be liable for any delay or failure to perform its obligations under this Agreement, where such delay or failure results from any act of God or other cause beyond its reasonable control (including, without limitation, any mechanical, electronic, communications or third-party supplier failure). Other than where, as part of the Services, we have agreed to provide back up Services, you are responsible for back up of your own files. You shall be responsible for maintaining any insurance coverage in respect of any loss or damage to data stored on the server.

You hereby release and hold harmless, and agree to indemnify, Fusionapps and its affiliates and suppliers (and their respective employees, directors and representatives) against any and all claims, actions, proceedings, suits, liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys’ fees and other litigation expenses) incurred by Fusionapps or its suppliers, arising out of or relating to (a) your violation or breach of any term, condition, representation or warranty of this Agreement, or any Usage Guidelines, order forms or other communications by or between us; (b) your improper or illegal use the Services; or (c) your violation, alleged violation, or misappropriation of any intellectual property right (including, without limitation, trademark, copyright, patent, trade secrets) or non-proprietary right of a third party (including, without limitation, defamation, libel, violation of privacy or publicity).

8.1. Entire Agreement. This Agreement, in conjunction with all documents referred to and incorporated herein by reference, constitute the entire agreement between you and Fusionapps with respect to the subject matter hereof and there are no representations, understandings or agreements which are not fully expressed in this Agreement and such other documents.

8.2. No Fiduciary Relationship; No Third-Party Beneficiaries. Fusionapps is not the agent, fiduciary, trustee or other representative of you. Except for the rights of Fusionapps’ suppliers under sections 6 and 7 hereof, nothing expressed or mentioned in or implied from this Agreement is intended or shall be construed to give to any person other than the parties hereto any legal or equitable right, remedy or claim under or in respect to this Agreement. This Agreement and all documents referred to and incorporated herein by reference and all of the representations, warranties, covenants, conditions and provisions hereof are intended to be and are for the sole and exclusive benefit of the parties hereto.

8.3. Amendments. Except as expressly provided in this Agreement, no amendment, change, waiver, or discharge hereof shall be valid unless in writing and signed by the parties.

8.4. Identification. Fusionapps may, free of any obligation to pay compensation, use your name and identify you as a Fusionapps client, in advertising, publicity, or similar materials distributed or displayed to prospective clients.

8.5. Choice of Law and Forum. THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE UNITED STATES AND THE STATE OF NEW JERSEY, WITHOUT REFERENCE TO RULES GOVERNING CHOICE OF LAWS. ANY ACTION RELATING TO THIS AGREEMENT MUST BE BROUGHT IN THE FEDERAL OR STATE COURTS LOCATED IN NEW JERSEY, TO THE EXCLUSION OF THE COURTS OF ANY OTHER STATE OR COUNTRY, AND YOU IRREVOCABLY CONSENT TO THE JURISDICTION OF SUCH COURTS.

8.6. Compliance With Laws. You shall at all times comply with all applicable laws and regulations and shall indemnify and save Fusionapps harmless from your failure to so comply. You agree that Fusionapps shall not have to perform any obligations set forth in this Agreement if such performance would violate any present or future law, regulation or policy of any applicable government.

8.7. Non-Assignment. You may not assign this Agreement or any right or obligation hereunder by operation of law or otherwise, without Fusionapps’ prior written consent. Fusionapps may assign its rights and obligations under this Agreement and may utilize affiliate and/or agents in performing its duties and exercising its rights hereunder, without your consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns.

8.8. No Waiver. Fusionapps’ failure to enforce the strict performance of any provision of this Agreement will not constitute a waiver of Fusionapps’ right to subsequently enforce such provision or any other provisions hereunder or thereunder.

8.9. Severability. Should any term or provision hereof be deemed invalid, void or unenforceable either in its entirety or in a particular application, the remainder of this Agreement shall nonetheless remain in full force and effect and, if the subject term or provision is deemed to be invalid, void or unenforceable only with respect to a particular application, such term or provision shall remain in full force and effect with respect to all other applications.

8.10. Headings. The section headings used herein are for reference and convenience only and shall not enter into the interpretation hereof.

8.11. Survival. All provisions of this Agreement relating to your warranties, intellectual property rights, limitation and exclusion of liability, your indemnification obligations and payment obligations shall survive the termination or expiration hereof and thereof.