Master Service Agreement

When used in this Agreement and its Addendums, the following definitions apply unless a specific definition is applied to and in any Addendum or attachment:

Secured Servers may provide some services such as reporting and tracking as a no charge service. Secured Servers reserves the right to stop providing these added services at any time for any reason. Secured Servers reserves the right to begin charging for these additional services at any time, and Secured Servers also reserves the right to offer new services that are not covered by this Agreement wherein additional charges could incur should the Client choose to use them.

Both parties own their own databases and nothing in this agreement is intended to transfer that ownership. Secured Servers reserves the right to transfer its database in the event of a change in Secured Servers ownership.

Any unauthorized attempt to gain access to Secured Servers' database or systems by the Client, or anyone directly or indirectly associated or related to the Client, however remotely, will constitute a material breach of this Agreement. In the event of any such attempt to gain access, Secured Servers may immediately terminate this Agreement, and the Client will immediately return to Secured Servers all copies of any information obtained by this access.

Secured Servers may terminate either (a) this Agreement, (b) any Addendums or (c) all, immediately, if the Client is the subject of a bankruptcy order, become insolvent, make any arrangement or composition with or assignment for the benefit of creditors, go into voluntary or compulsory liquidation, have a receiver or administrator appointed over the Client's assets, or if the equivalent of any such events under the laws of any of the relevant jurisdictions occurs to the Client.

The Client also agrees to abide by the Terms and Conditions of this Master Services Agreement, each Addendum, and Secured Servers' Acceptable Use Policies (AUP). Secured Servers reserves the right to manually or electronically review Client's website(s) to ensure there are no violations of the Terms and Condition or the AUP.

Secured Servers' employees and those of related companies have entered into an agreement to protect the companies' confidential and trade secret information even after their employment. The Client agrees that it would be difficult for Secured Servers to enforce this agreement if the Client were to hire an employee or a former employee and it would be difficult for the employee to abide by the terms of the agreement. The Client therefore agrees that the Client will not hire or enter into a contract of any kind with a current or former Secured Servers or related company employee for a period of 24 months following the effective date of that employee's last date of employment with Secured Servers or any related company without Secured Servers' written prior approval.

The Client understands that Secured Servers' Privacy Policy in part reads, "By using Secured Servers' services, the Client agrees that we may release information obtained in the course of the client's use of Secured Servers' services when it is believed, in Secured Servers' sole and absolute discretion, that the release is appropriate or otherwise necessary to comply with the law, enforce our Agreement, and/or protect the contract and other rights of our Clients".

Secured Servers and the Client both agree to pay any and all taxes that are imposed on Secured Servers or the Client's respective business. If Secured Servers is required to pay taxes for the Client, the Client will immediately reimburse Secured Servers for those taxes and any fines, penalties and interest.

By signing or accepting this Agreement the Client is stating that the Client is the owner, operator, and/or a designated officer of the business, with the authority to enter in to this Agreement, and have obtained all the necessary licenses, copyrights and/or certificates required to perform the Client's obligations. The Client will follow all laws and legal regulations that relate to the Client's business regardless of where those laws and regulations originate, and will comply with any laws and regulations that may apply in the future.

Secured Servers WILL UTILIZE ITS BEST EFFORTS TO MAINTAIN ACCEPTABLE PERFORMANCE OF THE SERVICE, BUT Secured Servers MAKES ABSOLUTELY NO WARRANTIES WHATSOEVER, EXPRESSED OR IMPLIED, INCLUDING WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

EXCEPT AS EXPRESSLY PROVIDED HEREIN, Secured Servers DOES NOT WARRANT THAT Secured Servers' APPLICATIONS WILL PERFORM IN THE MANNER EXPECTED OR WITHOUT INTERRUPTION, ERROR, OR DEFECT; OR THAT ANY REVENUE TO CLIENT WILL RESULT FROM THE ACTIVITIES CONTEMPLATED BY THIS AGREEMENT. EXCEPT AS SET EXPRESSLY FORTH IN THIS AGREEMENT, Secured Servers DOES NOT MAKE ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES AGAINST INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS NOT SPECIFICALLY ENUMERATED.

Secured Servers cannot guarantee continuous service, service at any particular time, or integrity of data stored or transmitted via its system or via the Internet. Secured Servers will not be liable for the inadvertent disclosure of, or corruption or erasure of, data transmitted, received, or stored on its system. Secured Servers will not be liable to the Client or any of the Client's customers for any claims or damages which may be suffered by the Client or the Client's customers, including, but not limited to, losses or damages of any and every nature, resulting from the loss of data, unauthorized access to the Client's website as a result of hackers or password trading, inability to access Internet, or inability to transmit or receive information, caused by, or resulting from, delays, non-delivery, or service interruptions whether or not caused by Secured Servers' fault or negligence. Secured Servers will not be responsible for the Client's venue not being accessible on the Internet due to circumstances not under Secured Servers' direct control such as individual Internet user's own equipment capabilities, limitations, other Internet service provider limitations and/or browser software limitations.

Upon ten (10) days notice to the Client, Secured Servers may discontinue any service, or may require fulfillment of additional conditions Secured Servers may choose to impose as a prerequisite for continuing any service. However, Secured Servers may discontinue service immediately for fraud committed by the Client or the Client's employees, illegal activity, or violations of its Acceptable Use Policies (AUP) and/or its other policies.

Secured Servers' liability to the Client and any end user of the service or any other of its services is limited to the amount paid to and received by Secured Servers for service not accepted. In no event will Secured Servers be liable to the Client, or any end user or any other entity for any special, consequential, or other damages, however caused, whether for breach of contract, negligence or otherwise, even if Secured Servers has been advised of the possibility of such damage.

The Client agrees that Secured Servers is an Internet Service Provider ("ISP") under the Digital Millennium Copyright Act (DMCA) and understand that Secured Servers is required under the DMCA to remove and/or have the Client remove any material that another party claims is infringing once Secured Servers has received, in its sole judgment, a proper notification. The Client also agrees that if the Client does not comply with a request from Secured Servers to remove material under the DMCA or for any other reason, Secured Servers may at its discretion block access any or all services provided under this Agreement until such time as Secured Servers is certain that the material is removed. Secured Servers may, at its sole discretion, determine who is a “repeat infringer” and may terminate this Agreement and its Addendums without notice to the Client if Secured Servers believes the Client to be a repeat infringer.

The Client is solely responsible for the Client's content, advertising and promotion, and that of anyone referring others to the Client's website. The Client is also responsible for insuring that the Client is the rightful owner or licensee for any copyrighted material, trademarks, or items that appear on the Client's website.

The Client will take all necessary measures to preclude Secured Servers from being made a party to any lawsuit or claim regarding the service provided to or by the Client, or any end user. The Client hereby agrees to indemnify Secured Servers and hold Secured Servers harmless from any and all claims of whatever nature brought by any anyone against Secured Servers in excess of the remedy set forth herein.

The Client hereby agree to reimburse Secured Servers for any and all expenses including legal fees associated with Secured Servers being involved with any civil, criminal, regulatory or investigatory actions brought by the Client or against the Client by anyone, including expenses associated with providing information that Secured Servers, in its sole discretion, believes it legally must provide or has been authorized by the Client to provide. The Client also understand and agree that Secured Servers will deduct those expenses from monies due to the Client and the Client agree to reimburse Secured Servers for any expense that exceeds what Secured Servers is able to deduct from the Client's account.

Nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. The Client will have no authority to make or accept any offers or representations on our behalf. The Client will not make any statement, whether on the Client's site or otherwise, that reasonably would contradict anything in this Section. Neither party is the agent of the other, and Secured Servers expressly disclaims responsibility for any conduct by the Client in violation of our terms of Agreement.

Client agrees that payment terms for the various services provided under this agreement may vary by service. Except for H-Series Products, Secured Servers will strive to provide a single invoice each month that combines the charges for all of the services provided, but cannot guarantee that that can always be accomplished. H-Series Product clients agree to allow Secured Servers to charge the Client's credit card in advance each month. Client agrees to pay all invoices within the time specified in the Addendum to this Agreement for each service provided by Secured Servers. Client also agrees that if Client utilizes a Transaction Processing Service supplied by a company associated with Secured Servers, that company may deduct payment for all Secured Servers' services provided under this agreement from the weekly check from the transaction settlement before remitting the payment to client.

This Agreement will continue until terminated by either party under the provisions above. Secured Servers may terminate this Agreement immediately and without notice if the Client violates the terms of this Agreement, it's Acceptable Use Policies (AUP), its policies, or the law. Secured Servers may, at its sole discretion, suspend or cancel services for the Client's account if it stays inactive for any consecutive ninety (90) day periods. Reinstatement of the Client's account, after suspension or cancellation, will require Secured Servers approval.

The parties' obligations under this Agreement are subject to, and neither party shall be liable for, delays, failures to perform, damages, losses or destruction, or malfunction of any equipment or any consequence thereof caused or occasioned by, or due to acts of terrorism, fire, flood, water, the elements, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, governmental actions, shortages of equipment for supplies, unavailability of transportation, acts or omissions of third parties, or any other cause beyond the parties reasonable control (“Force Majeure Event”). Notwithstanding the aforesaid, if a Force Majeure Event takes place and a party is materially hindered in the performance of its obligations under this Agreement or its normal business operations are delayed or become impossible, then, without limiting the hindered party's rights, the hindered party shall have the option, by giving the other party written notice, to suspend its obligations hereunder for the duration of any such contingency provided that such hindered party shall promptly upon discovery of the Force Majeure Event, use its commercially reasonable efforts to recommence performance of the affected obligations or provide an acceptable alternative to such services, provided that no such suspension shall exceed three (3) months. If any such suspension exceeds three (3) months, the non-hindered party shall have the right to terminate this Agreement at any time on written notice to the hindered party. No Force Majeure Event shall relieve a party of its payment obligations of any outstanding invoices and for services rendered prior to any Force Majeure Event hereunder by Secured Servers.

If any provision of this Agreement or its Addendums is held to be invalid by a court of competent jurisdiction, then the remaining provisions will nevertheless remain in full force and effect. The Client and Secured Servers agree to renegotiate in good faith any term held invalid and to be bound by any mutually agreed to substitute provision.

This Agreement is governed by and construed under the laws of the State of Arizona and the United States of America. The federal and state courts of the State of Arizona will have exclusive jurisdiction to adjudicate any non-arbitrable dispute arising out of this Agreement.

1. General. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled first, by good faith efforts of the parties to reach mutual Agreement, and second, if mutual Agreement is not reached to resolve the dispute, by final, binding arbitration as set out in paragraph (B) below.
2. If there is a dispute, controversy, claim and/or disagreement concerning the interpretation, application or enforcement of or in any way arising under this Agreement or breach of this Agreement, Secured Servers and Client shall work together in good faith to resolve such disputes within thirty (30) days from the date of the disputed incident. If Secured Servers and Client fail to resolve a dispute within the aforementioned thirty (30) day period, either party may submit the dispute to arbitration. The arbitration will take place in Phoenix, Arizona before a single arbitrator under the auspices of the American Arbitration Association's (“AAA”) Commercial Arbitration Rules currently in effect at that time. Disputes must be submitted to arbitration prior to any state, federal or international court action. Arizona law will be applied in the arbitration and any other subsequent legal hearings.
3. The arbitrator will not have the authority to award punitive damages or any other form of relief not contemplated in the contract. The arbitrator will render a written opinion setting forth the basis on which he or she arrived at the decision regarding each issue submitted to arbitration. The decision of each issue submitted to arbitration will be final and binding only to the extent it is accompanied by a written explanation of the basis upon which it was arrived at. Judgment upon the award, if any, rendered by the arbitrators, may be entered in any court having jurisdiction thereof.
4. Should any legal action permissible under this Agreement be instituted to enforce the terms and conditions of this Agreement, in particular the right to collect money due on unpaid invoices, the prevailing party will be entitled to recover reasonable attorney's fees and expenses incurred at both the trial and appellate levels.
5. Injunctive Relief. The foregoing notwithstanding, each party shall have the right to seek injunctive relief in an applicable court of law or equity pending resolution of the dispute in accordance with the foregoing.

This Agreement and any Addendums and/or attachments and/or service orders hereto set forth the entire Agreement and understanding between the parties and merges all prior discussion between them. The terms and conditions of this Agreement are posted at http://www.securedservers.com/msa.php. Secured Servers reserves the right to change these terms and conditions by posting such changes at http://www.securedservers.com. Continued use of Secured Servers' service by Client following such changes constitutes acceptance by Client of the current terms and conditions.

Per applicable Service Order.

Neither Secured Servers nor Client shall assign this Agreement or any interest therein, without the prior written consent of the other party, except in the event of the sale of all or the majority of either party's stock or assets or in the event of other corporate reorganizations, which consent shall not be unreasonably withheld or delayed. Any assignment prohibited hereby shall be null and void.

For the Client's own protection, the Client understands and agrees that Secured Servers will only accept changes and modifications to this Agreement or any Addendums that are in writing and signed by the individual(s) signing this Agreement. In the event of changes in ownership of Client or, website(s) covered by this Agreement, the Client must notify Secured Servers in writing of the change of ownership. Secured Servers may then require the new owner to execute a new Agreement and Addendums with Secured Servers.

If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions will nevertheless remain in full force and effect. We agree to renegotiate in good faith any term held invalid and to be bound by mutually agreed substitute provision.

All orders are subject to acceptance by Secured Servers. You will receive email confirmation of Secured Servers' acceptance of the Client's order. Secured Servers may refuse to accept any order. Such refusal may not be unreasonable, however, and we agree to provide the Client with notice via email or fax of any intent to delay or decline the acceptance of any order. Client agrees to pay all charges in advance for the service selected by the Client in the Customer Order Information form that is incorporated in these terms and conditions by reference including all monthly fees, additional product charges and optional charges incurred by the Client. Payment may be made by check, ACH, or credit card. H Series Product clients agree to allow Secured Servers to charge the Client's credit card in advance each month. Client hereby authorizes us to automatically charge any amounts the Client owes to Secured Servers to any credit card provided by the Client. You also agree that if this Addendum becomes effective at any time after the 1st of the month, Secured Servers may prorate the next invoice to reflect a full month's charges plus a sufficient number of days to have all subsequent billing periods start on the first of the month.

Bandwidth usage above the minimum specified in the Customer Order Information Form is automatically billed for the month the usage occurs in the month following the usage. If Secured Servers provides notice of a price increase, the Client may cancel this Addendum if within the 30 day notification period, the Client notifies Secured Servers of the Client's intent to cancel because of the increase.

Payment for service will be made in U.S. dollars to Secured Servers. The initial payment is due with this Addendum in the amount specified in Customer Order Information form or at the time of signing up for the H-Series products. If payment in full of any invoice is not received by Secured Servers within thirty (30) days of invoice date, Secured Servers may impose a debt service charge amounting to one and one-half percent (1.5%) of the overdue balance for each month or fraction thereof the overdue amount remains unpaid or the maximum allowed by law which ever is lower. In the event that any amount remains unpaid for thirty (30) days after the date of the invoice, Secured Servers may at its discretion discontinue, withhold, or suspend service.

A. Shared Servers ((Not available to H-Series Product clients)