EPhost, Inc.

General Terms:

EPhost offers a 99.9% Bandwidth Uptime Guarantee. You will be refunded the applicable portion of your hosting fees for any bandwidth outages. Downtime due to acts of God and maintenance are excluded.

EPhost offers a 30-Day Money Back Guarantee on all Shared Hosting Accounts. You will be refunded all fees paid should you close your account within the first 30 days.

We do not allow bulk email in any form. This includes opt-in, permission based and large mailing lists. The Customer shall be held liable for any and all costs incurred by EPHost as a result of the customer's violation of these terms and conditions. This is including, but is not limited to, attorney fees and costs resulting from Postmaster responses to complaints from and the cleanup of unsolicited commercial mailings and/or unauthorized bulk mailings and/or news server violations. First violations will result in a Cleanup Fee of $250 and the customer’s account will be reviewed for possible immediate termination. A second violation will result in Cleanup Fee of $500 and immediate termination of the customer’s account. The Customer who violates this policy agrees to also pay Investigation Fees of no more than $125 per hour that EPHost personnel must spend to investigate any violations.

Should your site currently have or will have an extremely large number of hits please contact us in advance so that we may prepare. I.e National TV spot. You will be responsible for any bandwidth charges above and beyond your allocated amount according to current prices and you will be responsible for any damages consequential or otherwise that may occur if you had not contacted us in advance.

If you are using our Cold Fusion or other programming language, you will be held responsible for any damages consequential or otherwise as a result of executing your code. There will be a $100.00 a hour repair charge should any type of programming you are using on your site damages the server, your site or someone else's site. Please exercise good judgment and care when executing these Cold Fusion tags or COM Objects. Please call for assistance if you are in doubt.

We will not be held liable whatsoever for any damages consequential or otherwise to your site, person, co-located equipment or company for server down-time in and including network maintenance, sever errors, acts of god, viruses, terrorism, security breaches (physical or otherwise), fire, or any such activity that disturbs the EPhost network.

Adult sites are ACCEPTED. No illegal content. No illegal products, pictures or information is allowed on your site. We will immediately terminate your account without refund should this be the case. Host has the right to monitor the Web Site, and in its sole discretion to remove any content that Host finds objectionable for any reason, without prior notice to Owner.

Owner represents and warrants to Host that: (a) Owner owns or has the right to use all material contained in the Web Site, including all text, graphics, sound, video, programming, scripts and applets; and (b) the use, reproduction, distribution, and transmission of the Web Site, or any information or materials contained in it, on and from Host's server computer does not: (i) infringe or misappropriate any copyright, patent, trademark, trade secret, or any other proprietary rights of a third party; (ii) violate any criminal laws; (iii) constitute false advertising, unfair competition, defamation, an invasion of privacy, violate a right of publicity, or violate any other law or regulation.

Web Site Owner acknowledges the terms of the Digital Millennium Act of 1998 and the obligations on the part of Web Site Host in the event of a notice from any third party that the Web Site infringes upon the rights of any third party. Web Site Owner consents to the Web Site Host following the procedures outlined in the Act in the event of a claimed infringement. Web Site Owner understands and agrees that Web Site host's compliance with the Act may result in the Web Site being taken off line. Web Site Owner indemnifies and holds the Web Site Host harmless from and against any and all damages that may result from the Web Site Host's good faith compliance with the terms of the Act.

Co-Location Customers: You are responsible for obtaining your own insurance for your equipment that has been placed in the EPhost cabinet(s) at our uplink facility. EPhost or the uplink facility will not be held liable whatsoever for any damages consequential or otherwise to your site, equipment, person or company for network downtime, network maintenance, reboots of your equipment due to network maintenance, abuse, misuse or theft by you or your delegated representatives. You will be held responsible for your actions or the actions of your delegated representatives who may accidentally or intentionally cause physical or consequential damage to EPhost equipment, service or facility.

NOTE: IN THE EVENT OF ANY DAMAGE TO YOUR CO-LOCATED SERVER, YOU AGREE THAT DAMAGES ARE LIMITED TO REPLACEMENT OR REPAIR OF THE SERVER ONLY. WE ARE NOT RESPONSIBLE FOR ANY OTHER DAMAGES, CONTRACTUAL OR OTHERWISE, SUCH AS, BUT NOT LIMITED TO, LOSS OF BUSINESS, RESULTING FROM DAMAGE TO YOUR SERVER.

Dedicated Server Customers: You are responsible for maintaining/operating/troubleshooting software that you have installed on your dedicated server, or we have installed on your behalf on your dedicated server. Software provided by EPhost under a Software Financing arrangement, is the sole responsibility of client and is considered client-provided software. EPhost or the uplink facility will not be held liable whatsoever for any damages consequential or otherwise to your site, software, person or company due to software downtime, reboots of your equipment, software maintenance, OS upgrades or patches that may interfere with your software, abuse, misuse by you or your delegated representatives. Further you will be held responsible for damages, consequential or otherwise, to the server or to the EPhost Network for any harm, unintentional or otherwise, due to client-provided software. This includes but is not limited to security breaches, attacks and viruses. You also hereby acknowledge that have and will maintain appropriate licensing for all client-provided software.

ALL EPHOST DEDICATED HOST CUSTOMERS MUST PROVIDE ACCESS TO THE SERVERS BY PROVIDING PASSWORD DISCLOSURE, FOR MAINTENANCE AND SECURITY PURPOSES. FAILURE TO PROVIDE ACCESS MAY RESULT IN IMMEDIATE SHUT DOWN OF THE SERVICE UNTIL HOST ACCESS IS ASSURED.

Web Design and Development Customers: We do not warranty/guarantee any application or website we develop or modify as fit for a particular purpose. No ongoing warranty or support is included unless specifically purchased separately. EPhost shall not be liable and held harmless for any damages due to omissions, errors, bugs or any such problem that may cause a loss of sales or other such damage to client. EPhost assumes client to provide all artwork/logos used in the development of the website and that client has obtained all necessary copyrights/licenses for the use of that material online or in printed material. Artwork and content provided by the client will always remain the copyright of the client. All code or artwork created will remain forever copyright EPhost and all rights reserved. At NO time shall any web development by EPhost be considered Work for Hire regardless of any verbal agreements or implications. You are hereby granted single instance, single server limited license to all applications, websites or artwork given to you by EPhost. This license may not be resold, transferred in whole or part, or given to another party without the express written consent of EPhost and additional recurring licensing fees may be due. All work is considered complete and payable when it is substantially complete. Work is substantially complete when EPhost has completed as much of their responsibilities as possible barring any lack of information/content/artwork that was supposed to have been provided by the client for use in the website but was not or has been delayed past the announced completion of the project. In the event of cancellation, you will be billed $105.00 per hour for every hour completed on your project. While not normal, we reserve the right to charge, above and beyond your quoted or estimated project fees, for consultations, on-site meetings, project planning, proof of concepts, additional artwork proofs or any work deemed out-of-the-scope of the project.

Credit Card Processing Customers: EPcommerce, is a registered sales office for Best Payment Solutions, Accept Merchant Services, AuthorizeNet and may develop additional relationships as necessary. The actual credit card processing service and payment gateway services are provided by the respective companies and are not provided directly by EPcommerce. While EPcommerce is happy to provide customer service for your account, it is not equipped with the necessary computer access to be able too provide in-depth answers to your questions. Both Best Payment Solutions and AuthorizeNet provide 24/7 customer service telephone numbers for you to use. These numbers can be found at www.epcommerce.com or by calling EPcommerce. EPcommerce does not bill for ongoing monthly charges for credit card processing services, but does however charge a setup fee for those services. EPhost cannot be held liable for any fraudulent charges on your merchant account or any loss due to such activities. Refunds, if applicable, should be addresses to the appropriate merchant services or payment gateway company. You are responsible for everything that occurs on your merchant account. EPcommerce makes the following recommendations to reduce the amount fraudulent activity on your account. 1) Set a PERSONAL limit amount for credit card transactions and do not go over that amount. 2) Do not accept international credit card charges or risk the consequences. 3) Large payments should be made by wire transfer or other guaranteed means 4) Even if the card is approved the Address Verification (AVS) or Card Code results may not match and may indicate fraud. 5) Do not allow another company to use your merchant account. 6) Keep excellent credit card processing, shipping and order records. 7) Report all fraud and suspicious activity immediately to the merchant services company NOT payment gateway. 8) The Payment Gateway cannot tell you "for sure" what occurred on your merchant account. 9) Reconcile your books at least 2 times a month so that you can spot missing transaction of fraud quickly. 10) Report any and all fraud or missing transactions to the merchant services company within 10 days.

Billing Terms:

a. All hosting payments are due on the 1st of the month in which you are due to billed. Payments will be considered late on the 10th of the month. All fees are fully earned when due and non-refundable when paid.
b. Payments for web development services are due in advance unless specific arrangements have been made. i.e. 1/2 down and 1/2 on completion.
c. If you are paying by check, DO NOT wait for an invoice, as it MAY NOT be forthcoming. If you have bandwidth overages for the month, we will notify you by the second week of the month.
d. If you are paying by credit card and your card declines, we will attempt to notify you by sending you an invoice by email. However, your balance remains due and payable according to these terms.
e. A late charge will be added to outstanding balances after the 10th of the month. The late fee is 5% or $15.00, whichever is greater. Additionally any amounts payable to EPhost not paid when due will bear interest at the rate of one and one half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less.
f. If your account remains past due, your account, at the sole discretion of EPhost, will be temporarily disconnected on the 15th of the month.
g. There is a $25.00 Returned Check fee.
h. Dedicated and Co-Located Customers: 30 day written notice is required to close your account. Cancellation requests must be made before the following billing cycle to avoid being billed for the next period. No refunds are made for unused partial month of service. Termination of this Agreement prior to the end of the term hereof shall not effect the obligation of the Web Site Owner to continue to pay the entire hosting fee hereunder through the entire term hereof.
i. Refunds for Pre-Paid hosting fees: Pre-Payment of hosting fees is automatically considered a term contract for hosting service. No refunds will be made for the unused portion of pre-paid hosting service regardless of term.
j. EPhost Financed Software: If you have software that we have purchased and financed on your behalf, you are responsible to repay the total purchased price regardless if you discontinue service with EPhost. At the time of your cancellation the entire unpaid balance of your financed software will become due and payable immediately.
k. Credit Card will be billed under our parent company name: Electronic Progress, LLC. All invoices are Due on Receipt.
l. Prices subject to change at anytime without notification with the exception of hosting fees. You will be notified 30 days in advance if your hosting fees change.

Terms of Service:

Terms of service are subject to change without notice. A copy of this document with larger font may be requested or viewed online. We reserve the right to refuse service to anyone. Your account may be closed without notice should you violate these terms. We will not be responsible for damages (including a loss of sales) consequential or otherwise to your website, reputation, company or person due to your account being closed. If any part of this agreement is found contrary to law, then the rest shall remain in effect. In the event EPhost is unable to perform the duties herein or closes business for any reason, Ephost will make all reasonable attempts to provide Client with 30 days notice, when possible. Additionally, EPhost will make all reasonable attempts to find additional web hosting facilities for Client. Furthermore, certain provisions are made for Dedicated Server Customers: Dedicated Server Customers may, at their option, purchase their server(s) (hardware and software, unless licensing prohibits the sale of software) to collocate at a facility of their choice based on the following schedule: Less than 10 months of paid service with Company: $3500.00, over 10 months and less than 20 months: $2500.00 and over 20 months: $1500.00. Client agrees that the election to take this option eliminates any and all liability of Company.

Limitations of Warranties and Liability:

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, HOST DISCLAIMS ANY AND ALL EXPRESS WARRANTIES. WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES OF MERCHANTABILITY. HOST WILL NOT BE LIABLE FOR ANY LOSS OF BUSINESS OR PROFITS, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR SIMILAR DAMAGES, OR, OTHER THAN AS SET FORTH IN THIS AGREEMENT, FOR CLAIMS OF DAMAGES MADE BY ANY THIRD PARTY FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY ACKNOWLEDGES THAT THIS LIMITATION OF LIABILITY REFLECTS AN INFORMED, VOLUNTARY ALLOCATION BETWEEN THE PARTIES OF THE RISKS (KNOWN AND UNKNOWN) THAT MAY EXIST IN CONNECTION WITH THIS AGREEMENT. IN NO EVENT WILL HOST'S LIABILITY EXCEED THE TOTAL PRICE, AS DEFINED IN THIS AGREEMENT.

This Agreement, including all Exhibits, Appendices, and Attachments, contains the entire agreement of the Parties relating to the rights granted and obligations assumed herein. Any oral representations or modifications concerning this instrument shall be of no force or effect unless contained in a subsequent written modification signed by the Party to be charged

Binding Arbitration:

Any dispute, excepting simple collections actions arising from non payment of hosting fees, arising from or in connection with this Contract shall be submitted to American Arbitration Association for arbitration which shall be conducted in accordance with AAA's arbitration rules in effect at the time of applying for arbitration. Parties agree to a venue of San Diego, California for conduct of such arbitration. The arbitral award is final and binding upon both parties." The prevailing party shall be entitled to recover its actual costs and attorney fees and all other litigation costs, including expert witness fees, and all actual attorney fees and litigation costs incurred in connection with the enforcement of a judgment arising from such action or proceeding. The provisions of the preceding sentence shall be severable from the provisions of this Agreement and shall survive the entry of any such judgment. The Parties submit to jurisdiction, law and venue in the State of California in any legal proceeding arising regarding this Agreement.