Content

All services provided by Softwired are to be used for lawful purposes only. Transmission, storage, or presentation of any information, data or material in violation of any United States Federal, State or Local law is prohibited. This includes, but is not limited to: copyrighted material, material we judge to be threatening or obscene, material that jeopardizes national security, or material protected by trade secret or other laws. The subscriber agrees to indemnify and hold harmless Softwired, from any claims resulting from the subscriber’s use of Softwired’s services which damages the subscriber or any other party.

Examples of prohibited content or links include (but are not limited to):

• IRC Software

• Pirated software

• Hacking sites, programs or archives

• Warez Sites

• Distribution of music files or any other material in which the account holder does not own the copyright.

Softwired will be the sole arbiter as to what constitutes a violation of this provision. Content that does not meet these standards will be removed without prior notice to the subscriber.

Housing of any of the following files is considered a violation of the terms of service:

• IRC – We currently do not allow IRC, Egg Drops, BNC, or IRC bots to be operated on our servers or network. Files with references to IRC or any likeness thereof are prohibited.

• Proxies – We do not allow proxy servers of any kind, whether for personal or business use. Files with references to any proxy or likeness thereof are prohibited.

• Port Scanning – We do not allow any kind of port scanning to be done on or from our servers or network.

Commercial Advertising – Email

• Spamming, i.e. the sending of unsolicited email, from any Softwired server or any server located on the Softwired network is STRICTLY prohibited. Softwired will be the sole arbiter as to what constitutes a violation of this provision. This also includes Opt-in Opt-out mail programs and mail that either directly or indirectly references a domain contained within an account at Softwired.

• Running Unconfirmed Mailing Lists. Subscribing email addresses to any mailing list without the express and verifiable permission of the email address owner is prohibited. All mailing lists run by Softwired customers must be Closed-loop (“Confirmed Opt-in”). The subscription confirmation message received from each address owner must be kept on file for the duration of the existence of the mailing list. Purchasing or selling lists of email addresses from 3rd parties for mailing to or from any Softwired-hosted domain, or referencing any Softwired account, is prohibited.

• Advertising, transmitting, or otherwise making available any software, program, product, or service that is designed to violate this AUP or the AUP of any other Internet Service Provider, which includes, but is not limited to, the facilitation of the means to send Unsolicited Bulk Email, initiation of pinging, flooding, mail-bombing, text-bombing, unsolicited bulk text messaging or denial of service attacks is prohibited.

• Email address cultivating, or any unauthorized collecting of email addresses without prior notification of the email address owner is strictly prohibited.

• Operating an account on behalf of, or in connection with, or reselling any service to, persons or firms listed in the Spamhaus Register of Known Spam Operations (ROKSO) database at www.spamhaus.org is prohibited.

• All commercial email marketing companies must adhere to the Controlling the Assault of Non-Solicited Pornography And Marketing (CAN-SPAM) Act of 2003. In addition such companies are prohibited the sending of bulk mail from “disposable domain names” with whois privacy protection.

Advertising & Promotions Limitations

In the following scenarios Softwired clients are prohibited from advertising, promoting or making claims related to services which are hosted upon infrastructure at Softwired. This limitation includes what is allowed to be stated on your website, to customers, in promotions and in advertising materials. This limitation applies to claims by the client which relate to services hosted by Softwired.

• Claims related to DDOS Mitigation or any related service including, but not limited to, proxy protection, denial of service protection, denial of service mitigation or ddos or dos services.

• Any illegal or unlawful activity

• Any services intended to defraud, scam, defame, coerce or entice others into an unlawful activities

Server Abuse

Any attempts to undermine or cause harm to a Softwired server or subscriber of Softwired is strictly prohibited including, but not limited to:

• Logging into a server or account that you are not authorized to access.

• Accessing data or taking any action to obtain services not intended for you or your use.

• Attempting to probe, scan or test the vulnerability of any system, subsystem or network.

• Tampering, hacking, modifying, or otherwise corrupting or breaching security or authentication measures without proper authorization.

• Transmitting material that contains viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines or engines with the intent or effect of damaging, destroying, disrupting or otherwise impairing a computer’s functionality or the operation of the System.

• Interfering with, intercepting or expropriating any system, data or information.

• Interfering with service to any user, host or network including, without limitation, by means of overloading, “flooding,” “mailbombing,” or “crashing” any computer system.

You will be held responsible for all actions performed by your account whether it be done by you or by others.

All sub-networks of Softwired and all servers must adhere to the above policies.

Password Security and Account Authorization

Softwired provides customers flexibility over their own passwords, account access and authorization procedures. Customers are responsible for selecting the appropriate authentication procedures and selecting the proper information which will be used to authenticate the account. It is the responsibility of the customer to protect the information used to authenticate their account. Account access, password security and server security are the responsibility of the customer. Softwired will not be liable for any damages, direct or indirect, that result from unauthorized account access, password compromise or hacking.

Bandwidth Measurement and Overage Fees – Internet Data Transfer

If Softwired hosting packages contain bandwidth restrictions then in the event of an overage the website will be automatically suspended until the account is either upgraded or the period falls within the next month’s charges.

Softwired Private Networking

Softwired s private networking allows servers to communicate with each other over an internal, isolated private network. The bandwidth used on the private network is free and does not count against your regular bandwidth usage.

Server Support

Softwired offers phone and email support during normal business hours Monday through Friday 8:00am-5:00pm Pacific Time. Emergency after hours support is provided at a rate of $150/hr.

Basic support and maintenance of dedicated servers is provided at the discretion of Softwired In the case of erroneous instances or support issues extending beyond what we determine to be within the realm of reasonable assistance, support is priced as follows:

• $100/hour

Scheduled Maintenance and Downtime

Softwired will use it’s commercially reasonably efforts to provide services 24 hours a day, seven days a week. Subscriber acknowledges that from time to time the services may be inaccessible or inoperable for various reasons, including periodic maintenance procedures or upgrades (“Scheduled Downtime”); or service malfunctions, and causes beyond Softwired’s control or which are not reasonably foreseeable by Softwired, including the interruption or failure of telecommunications or digital transmission links, hostile network attacks, or network congestion or other failures. Softwired will provide at least 48 hours advance notice to the subscriber for Scheduled Downtimes, and will use commercially reasonable efforts to minimize any other disruption, inaccessibility and/or inoperability of its web servers. Softwired has no responsibility for downtime resulting from a user’s actions.

Fees

Softwired will charge you the fees stated in your Order. When you sign up for hosting your credit card will be charged or your account balance will be deducted for any balance.

Softwired may suspend all services (including services provided pursuant to any unrelated Order or other agreement we may have with you) if our charges to your credit card are rejected for any reason. Softwired may charge interest on overdue amounts at 1.5% per month (or the maximum legal rate if it is less than 1.5%). If any amount is overdue by more than thirty (30) days, and Softwired brings a legal action to collect, or engages a collection agency, you must also pay Softwired’s reasonable costs of collection, including attorney fees and court costs. All fees are stated and will be charged in US Dollars. Any “credit” that we may owe you will be applied to fees due from you for services, and will not be paid to you as a refund. Charges that are not disputed within sixty (60) days of the date charged are conclusively deemed accurate. You must provide Softwired with accurate factual information to help Softwired determine if any tax is due with respect to the provision of the Services, and if Softwired is required by law to collect taxes on the provision of the Services, you must pay Softwired the amount of the tax that is due or provide satisfactory evidence of your exemption from the tax. You authorize Softwired to obtain a credit report at any time during the term of the Agreement. Any credit that we may owe you, such as a credit for a SLA remedy, will be applied to unpaid fees for services or refunded to you, at our option.

Cancellation & Refunds

To Terminate your Softwired account, submit a cancellation request in writing to support@softwiredhost.com. After our support team verifies you are authorized to cancel the account, your entire Softwired account will be cancelled.

Hosting accounts are prepaid accounts and are not eligible for refunds unless agreed to in advance.

Account Setup, Termination, and Billing

The account will be charged on the day the order is processed, regardless of the account billing date. The account will not be charged again until the next month’s billing cycle. Billing dates are recurring on the day the account was opened.

Check Orders: Accounts for subscribers who wish to pay by check will be setup when the check is received by Softwired

EVENT OF DEFAULT BY CUSTOMER (Disabling of accounts due to overdue payment). If the CUSTOMER fails to pay an invoice within 14 days of the date of that invoice, Softwired reserves the right to disconnect service without further warning. If services are disconnected for non payment, customer must pay all past due charges up to the day of service disconnection in order to reconnect service. If your account has been disabled for non payment, you may be charged a reconnection fee of up to $50 in order to re-enable your account.

SOFTWIRED’S REMEDY UPON DEFAULT; TERMINATION. In addition to all rights and remedies granted to Softwired in this Terms of Service (including, but not limited to, the right to charge and collect Late Charges), upon the occurrence of an Event of Default, Softwired shall have the right (a) to cease providing the Services to Customer without notice to Customer, (b) upon not less than one (1) business days written notice to Customer, to terminate the Hosting Services, all at Customer’s cost and expense. Upon such termination, Customer agrees to and shall immediately pay to Softwired all Fees and other amounts due and owing for Services provided through and including the effective date of termination.

Cancellation Procedure: Valid proof of account ownership will be required to terminate an account. This includes, but is not limited to, the billing password or an account passphrase created by customers. Non-secure information, such as the contact email address or account billing address, is not sufficient as a security verification. The month-to-month agreement for services is automatically renewed each month in perpetuity subject to written cancellation via help desk ticket Client Login or email sent to support@softwiredhost.com (email subject to valid proof of account ownership). Softwired is not able to schedule cancellation requests. Customer is responsible for any fees incur for Services to customer if no formal cancellation request is submitted.

Returned Check Fee and Credit Card Charge Backs A returned check penalty fee of $25 will be charged to any customer’s account for any check dishonored by their financial institution. This fee will be waived if the check was returned in error, provided that supporting documentation is submitted. The returned check and penalty fee must be paid immediately in order to guarantee that services will remain online and available. If a customer or anyone paying on the customer’s behalf has written two or more returned checks, check cashing privileges will be revoked. If a returned check was used to pay for more than one customer’s account, each account will be assessed the $25 returned check fee. Payments made by a returned check are reversed from the customer account, leaving the balance due and payable immediately. Outstanding balances are subject to the unpaid fees and delinquent accounts policy and may result in server suspension or account termination. If the account is terminated all information within the account will be deleted.

A credit card charge back fee of $50 will be charged to any customer’s account for any charge back received by their financial institution. The original charge amount and penalty fee must be paid immediately in order to guarantee that services will remain online and available. If a customer or anyone paying on the customer’s behalf has used a credit card to pay for services ending in 2 or more chargebacks, will result in credit card payment privileges being revoked (full payment will be due via money order or wire transfer). This fee will be waived and credit card payment privileges reinstated if the chargeback resulted in error, provided that supporting documentation is submitted. If a credit card was used to pay for more than one customer account resulting in multiple chargebacks, each account will be assessed the $50 fee. Chargebacks received are reversed from the customer’s account, leaving the balance due and payable immediately. Outstanding balances are subject to the unpaid fees and delinquent accounts policy and may result in server suspension or account termination. If the account is terminated all information within the account will be deleted.

Courtesy Services for Customers

All services such as backup and Cpanel are provided for the courtesy of the subscriber. It is the sole responsibility of the subscriber to maintain the subscriber’s own backup of any data. Softwired is not responsible for lost data or for lost data due to third party software that is not maintained by Softwired programming staff. (Cpanel is not associated with Softwired).

Softwired maintains disaster recovering backups that may be available to restore an account depending on the date and time of the backup at a restoration fee of $50.

Promotional Use

Softwired may refer to You, Your company, or your logo’s for promotional purposes. Your company name, logos and the services that were provided to the customer by Softwired may be used in promotional materials, advertising, marketing releases, newsletter, public disclosures and on the Softwired website. This reference will be strictly limited to disclosure that Softwired has provided services to the company and will not contain any confidential, sensitive or proprietary information in such a reference. The reference will also not provide any personally identifiable information about the individual or technical information regarding the server configuration and design used by the customer at Softwired. However, Softwired may disclose any information requested by law enforcement or when compelled by court order, applicable laws or regulations.

Any work or professional services performed or provided by Softwired under this Agreement shall not be deemed .Work For Hire,. but Softwired shall grant a non-exclusive, non-transferable license to You, for the duration of this Agreement, its employees, affiliates, and third parties commissioned by Softwired.

Limitation of Damages or Liability

SOFTWIRED SHALL NOT BE LIABLE TO CUSTOMER FOR HARM CAUSED BY OR RELATED TO CUSTOMER’S SERVICES OR INABILITY TO UTILIZE THE SERVICES UNLESS CUASED BY WILLFUL MISCONDUCT. SOFTWIRED SHALL NOT BE LIABLE TO CUSTOMER FOR LOST PROFITS, INDIRECT, SPECIAL OR INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES. NOTHWITHSTANDING ANYTHING ELSE IN THIS TERMS OR SERVICE AGREEMENT, THE MAXIMUM AGGREGATE LIABILITY OF SOFTWIRED INC AND ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY OF LAW SHOULD NOT EXCEEN THE AMOUNT OF FEES IT HAS COLLECTED ON THE ACCOUNT. EXCEPT AS OTHERWISE PROVIDED IN THIS TERMS OF SERVICE AGREEMENT, SOFTWIRED PROVIDES ALL PRODUCTS AND SERVICES “AS IS”, WITHOUT WARRANTY OR ANY KIND, WHETHER EXPRESS, OR IMPLIED AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OF FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR THE SELECTION, USE, AND SUITABIL ITY OF ANY PRODUCT AND SERVICE AND SOFTWIRED SHALL HAVE NO LIABILITY ASSOCIATED WITH THE FORGOING. CUSTOMERS ARE RESPONSIBLE FOR ENSURING SECURITY OF SERVERS.

General

• Terms Of Service are subject to change without any prior notification.

• These Terms of Service are a legally binding contract between the subscriber and Softwired

• By opening an account, the subscriber agrees to the above-stated terms.

• Anything not listed in the Terms of Service is open to interpretation and change by Softwired administrators without prior notice.

• Any violation of these Terms of Service will result in termination of the account. Softwired maintains the right to terminate accounts without prior notification.

• In the case that a customer is terminated for violating one or more of the Softwired Terms of Service, Softwired reserves the right to deny access to, and/or, destroy customer data stored on the offending server or account. Softwired may at its own discretion allow access to a terminated account. If Softwired agrees to provide access to an account which has been terminated due to a Terms of Service violation, the customer will be subject to a one-time charge of $500 or more to cover the cost delivering the account data.

Dispute Resolution

Any dispute between Softwired and a subscriber shall be determined by arbitration conducted by the American Arbitration Association pursuant to its commercial arbitration rules. The arbitrator shall decide any dispute in accordance with Washington law, without the application of choice of law principles. Each party shall bear its own expenses and legal fees for the arbitration. The arbitration shall be conducted in Whatcom County, Washington, unless both parties agree in writing to a different location. The arbitration award is enforceable as a judgment of any court having proper jurisdiction.