Exchange Hosting Agreement

ANY USAGE OF COMPANY'S SERVICES, YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, APPENDIX A. MICROSOFT SOFTWARE USE-TERMS AND CONDITIONS (below), ACCEPTABLE USE POLICY, AND COMPANY'S NO-SPAM POLICY.

You agree you shall use the Company's services only for lawful purposes.

Company and You agree to the following provisions:

1. Provision of Services. Company agrees to provide services to You in accordance with the Shared Exchange Hosting Service Level Agreement in return for your payment for Company's services, your execution and compliance with this agreement, and your compliance with Appendix A Microsoft Software Use-Terms and Conditions (below), Company's Acceptable Use Policy and No-Spam Policy all incorporated by reference herein.

Provision of Company's services shall commence once Company has received both Your payment for Company's services and this Master Service Agreement (Agreement) duly executed by You.

2. Agreement Term.

The Agreement Term is either the Initial Term or Renewal Term as defined herein. The Initial Term is defined as the time period from the date of your initial payment and execution of this Agreement, whichever occurs later, through the remainder of the calendar month in which this Agreement was executed. The Renewal Term is defined as one calendar month beginning at the end of any prior Agreement Term.

3. Automatic Renewal.

This Agreement shall renew automatically at the end of the prior Agreement term unless terminated in accordance with this Agreement either by You or by the Company. We reserve the right to modify the Master Service Agreement and Service Level Agreement (or any portion thereof) at any time without notice. When a new Agreement term begins, the then current Master Service Agreement and Service Level Agreement shall apply. Please review this agreement from time to time so that you will be apprised of any changes.

4. Termination without Cause.

You may terminate this Agreement at any time, for any reason, by following the termination procedure located within the Account section of the CONTROL PANEL Control Panel prior to the beginning of any Renewal Term.

THE COMPANY SHALL NOT BE REQUIRED TO REFUND TO YOU AMOUNTS ALREADY PAID FOR THE MONTH IN WHICH YOU TERMINATE THE AGREEMENT. TERMINATION OF YOUR ACCOUNT WILL NOT CANCEL OR WAIVE ANY FEES OWED TO THE COMPANY PRIOR TO OR AT ACCOUNT TERMINATION. YOUR DATA AND ACCOUNT SETTINGS ARE IRREVOCABLY DELETED AFTER ACCOUNT TERMINATION, INCLUDING BUT NOT LIMITED TO, WEB SITE CONTENT, DATABASES, AND EMAIL MESSAGES. SECURING ALL NEEDED DATA FROM YOUR ACCOUNT PRIOR TO ACCOUNT TERMINATION SHALL BE SOLELY YOUR RESPONSIBILITY.

The Company may terminate this Agreement without cause at any time, for any reason, by providing written or electronic mail notice of termination to your UCwebhost, Inc. email contact address no less than fifteen calendar days prior to the service termination. If the effective date of the termination occurs prior to the end of the Agreement Term, Company shall refund or not charge You the monthly hosting fees for the month in which Services terminate.

5. Termination for Cause.

To terminate your account for the Company’s violation of the terms of this Agreement or the Service Level Agreement, You shall provide to Company's Legal Department in writing, via email or via certified mail, the details of the Company’s violation and allow the Company a reasonable time to cure any such violation prior to termination of your account.

THE COMPANY MAY TERMINATE SERVICES TO YOU IMMEDIATELY AND WITHOUT PRIOR NOTICE (TERMINATION FOR CAUSE) FOR ANY OR ALL OF THE FOLLOWING REASONS:

ANY MATERIAL BREACH OF THIS AGREEMENT, WHICH INCLUDES BUT IS NOT LIMITED TO VIOLATION OF THE COMPANY’S ACCEPTABLE USE OR NO SPAM POLICIES; OR ANY NON-MATERIAL BREACH OF THIS AGREEMENT WHICH REMAINS UNCURED BEYOND A REASONABLE TIME AFTER BREACH NOTIFICATION; AND FAILURE TO PROVIDE AND KEEP CURRENT ALL Interactive Online CONTACT AND BILLING INFORMATION.

IN THE EVENT OF TERMINATION FOR CAUSE, THE COMPANY SHALL NOT REFUND ANY PAID FEES. TERMINATION FOR CAUSE WILL NOT CANCEL OR WAIVE ANY FEES OWED TO THE COMPANY PRIOR TO ACCOUNT TERMINATION.

6. Payment Terms.

You agree to be billed at the beginning of the Agreement Term via your credit card for all recurring and one-time charges, including but not limited to late fees and termination charges, for all Company's services ordered by You and for any fees You owe to the Company. You further agree to be billed for any additional services ordered at the time the additional services are ordered and also at the beginning of each Renewal Term. Invoice information is provided to You by the Company via your request from within in the CONTROL PANEL Control Panel.

You understand and agree that You are responsible for monitoring and maintaining your accounts within all plan-specified usage limits. In the event your usage exceeds these limits for your account, Company will issue warnings to the contact e-mail on Your account. If you continue to exceed these limits for your account, You agree the Company may charge You for such excess usage via your credit card at the then-published price on the Company's web site. The Company may also increase the limits for your account and charge you accordingly for future periods of service. Usage and associated charges for excess usage shall be determined based solely by the Company’s statistical information. Unused monthly allotments shall not accrue or carry over from one month to any other month.

7. Taxes.

The Company shall not be liable for taxes and other governmental fees and assessments to be paid which are related to purchases made from You or from the Company's server. You agree that You shall be solely responsible for all taxes, fees, and assessments of any nature associated with products or services sold through the use of or with the aid of services provided to You by the Company.

8. "Beta" Hosting Products.

THIS SECTION APPLIES ONLY TO CUSTOMERS WITH ACCOUNTS CREATED ON EXPERIMENTAL "BETA" PLANS AND PLATFORMS.

"BETA" HOSTING SERVICES ARE PROVIDED TO YOU ON AN "AS IS" BASIS.

All provisions of this Agreement shall apply to experimental "beta" plan and platform accounts, except paragraphs 1, 2, 3, and 6. The Shared Exchange Hosting Service Level Agreement guarantees do not apply to "beta" plan or platform accounts during periods in which You receive the Company's "beta" hosting services for free or at a discount.

In exchange for Company providing experimental "beta" hosting services You agree, during periods You receive free or discounted "beta" hosting services from Company, to comply with this Agreement as it applies to "beta" hosting accounts, Company's Acceptable Use Policy, and Company's No-Spam policy.

Uptime guarantees provided elsewhere in this Agreement or in Service Level Agreement do not apply to "beta" plan and platform accounts. Company does not make any guarantee of the integrity of data stored on "beta" hosting servers.

YOU ARE STRONGLY DISCOURAGED FROM USING ACCOUNTS ON "BETA" PLANS OR PLATFORMS FOR HOSTING ANY PRODUCTION APPLICATIONS OR FOR STORING SENSITIVE DATA.

Company shall upgrade software on "beta" hosting servers when and as Company deems necessary in its sole discretion. Company does not warrant or represent that new versions of the software installed on "beta" servers will be compatible with the currently installed version or that loss of functionality or interruption of service will not occur as a result of such upgrades.

The Company reserves a right to terminate any "beta" Hosting Program at any time by giving You fifteen days written or electronic mail notice.

If a "beta" program is terminated, all free and discounted accounts on the "beta" servers will be converted at the end of the fifteen-day notice period to fee-for-service accounts to a Company's Hosting Plan selected at Company's discretion. To discontinue the account and avoid incurring increased charges under the Company's Exchange Hosting Plan, the account must be terminated by the customer following the termination provisions in Paragraph 4 of this Agreement.

9. Materials and Products.

Any material and data You provide to the Company in connection with the Company's services shall Server Ready. Server Ready is defined as being in a condition and form, as determined solely by the Company, which requires no additional manipulation or verification on the part of the Company. Attempting to place or requesting placement of Non-Server-Ready material or data on the Company’s servers shall be a breach of this Agreement.

The Company may, in its sole discretion, reject material or data that You have placed, attempted to place, or have requested be placed on the Company's servers. The Company agrees to notify You immediately of its rejection of the material or data and provide You with an opportunity to amend or modify the material or data to meet the requirements of the Company.

10. Limited Warranty; Limitation of Damages.

THE COMPANY PROVIDES SERVICES AS IS AND WITH ALL RISKS. YOU EXPRESSLY AGREE THAT USE OF THE COMPANY'S SERVICES IS AT YOUR SOLE RISK.

The Company, its agents, affiliates, vendors and the like do not represent or warrant that the Services will be uninterrupted or error free; neither do they make any warranty as to the results that may be obtained from the use of the Services or as to the accuracy, reliability, or content of any information service or merchandise contained in or provided through the Services. The Company expressly disclaims the warranties of merchantability and fitness for a particular purpose and all warranties not expressly contained in this Agreement. You and the Company agree that the terms of this Agreement shall not be altered due to custom or usage or due to the parties’ course of dealing or course of performance under this Agreement.

The Company, its agents, affiliates and vendors shall not be liable for any indirect, incidental, special, punitive or consequential damages, including but not limited to damages for lost profits, business interruption, loss of programs or information, and the like, that result from the use or inability to use the Services; from mistakes, omissions, interruptions, deletion of files or directories, errors, defects, delays in operation, or transmission; or for any failure of performance regardless of whether the Company has been advised of such damages or their possibility, or whether the above events are limited to acts of God, communication failure, theft, destruction, or unauthorized access to the Company's records, programs, or the Services, whether in contract, tort or otherwise.

You agree that the Company’s total liability and your sole remedy for any non-accessibility to the Services or other downtime is limited to the penalties listed in the Shared Exchange Hosting Service Level Agreement, however, in no event shall the Company’s liability exceed the total aggregate amount paid by You to the Company under this Agreement, including all fees, attorney fees, and costs.

The Company will exercise no control over the content of the information passing through the Company's network except those controls expressly provided herein.

11. Patents, Copyrights, Trademarks, and Other Intellectual and Proprietary Rights.

Except for rights expressly granted herein, this Agreement does not transfer any intellectual or other property or proprietary right to You. You agree that all right, title, and interest in any product or service provided to You is solely the property of the Company. These products and services are only for Your use in connection with Company's services provided to You as outlined in this Agreement.

You expressly warrant and represent to the Company that You have the right to use any patented, copyrighted, trademarked or proprietary material which You use, post, or otherwise transfer to or by way of the Company servers. Breach of this warranty shall be a material breach of this Agreement.

12. Hardware, Equipment, and Software.

You are responsible for and must provide all phones, phone services, computers, software, hardware, and other services necessary to access Company servers. Company makes no representations, warranties, or assurances that your equipment will be compatible with Company services.

13. Age and Capacity.

You expressly represent and warrant that You and any person to whom You grant access to your Company account have reached the age of eighteen and that You are not subject to an limitation on your ability to enter into this Agreement.

14. Indemnification.

You agree that you shall defend, indemnify, save, and hold Company harmless from any and all demands, liabilities, losses, costs, and claims, including reasonable attorneys' fess, asserted against Company, its agents, servants, officers, and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by You, your agents, employees, or assigns.

Without limiting the foregoing, You agree to defend, indemnify, and hold harmless Company against liabilities arising out of:

(i) any injury to person or property caused by any products sold or otherwise distributed in connection with Company services provided to you;
(ii) any material supplied by You infringing or allegedly infringing on the property or proprietary rights of a third party;
(iii) copyright infringement; and
(iv) any defective product which You sold or distributed by means of Company services.

15. Miscellaneous.

Governing Law; Jurisdiction; Forum. This Agreement shall be governed by and construed in accordance with the laws of the state of California without regard to its conflicts of laws or its principles. You agree, in the event any claim or suit is brought in connection with the Company's provision of the Services to You, to submit to the jurisdiction of the state of California, and agree to the courts of Santa Clara County, California as the appropriate forum.

Severability. In the event that any one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any of the other provisions of this Agreement, and this Agreement shall be construed as if such provision(s) had never been contained herein, provided that such provision(s) shall be curtailed, limited, or eliminated only to the extent necessary to remove the invalidity, illegality, or unenforceability.

Waiver; No Oral Modification. No waiver by the Company of any breach by You of any of the provisions of this agreement shall be deemed a waiver of any preceding or succeeding breach of this agreement. No such waiver shall be effective unless it is in writing signed by the parties hereto, and then only to the extent expressly set forth in such writing. No modification of this agreement shall be effective unless it is in writing and signed by the parties hereto, and then only to the extent set forth in such writing.

No Assignment. No benefit or duty under this Agreement shall be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or charge, and any attempt to do so shall be void.

Surviving Clauses. Clauses 7, 8, 10, 11, 14, and 15 of this Agreement shall survive for the lesser of a period of two years after termination of your account or the maximum length permitted by law.

Entire Agreement; Third Party Beneficiaries. This Agreement constitutes the entire agreement for provision of the Services to You and supersedes all other prior agreements and understandings, both written and oral, between the You and the Company with respect to the Services. You understand and agree that the Company and You intend to include, as the sole third party beneficiaries of this Agreement, Company’s software vendors, with all rights and remedies available as if such vendors were a party to this Agreement.

Shared Exchange Hosting Master Agreement v. 3.4 – 15SEP2005

APPENDIX A. MICROSOFT SOFTWARE USE – TERMS AND CONDITIONS

This document concerns your use of Microsoft software, which includes computer software provided to you by UCwebhost, Inc. as described below, and may include associated media, printed materials, and "online" or electronic documentation (individually or collectively "SOFTWARE PRODUCTS"). UCwebhost, Inc. does not own the SOFTWARE PRODUCTS and the use thereof is subject to certain rights and limitations of which UCwebhost, Inc. needs to inform you. Your right to use the SOFTWARE PRODUCTS is subject to your agreement with UCwebhost, Inc., and to your understanding of, compliance with and consent to the following terms and conditions, which UCwebhost, Inc. does not have authority to vary, alter or amend.

I. DEFINITIONS.

For purposes of this Appendix, the following definitions shall apply: "Client Software" means software that allows a Device to access or utilize the services or functionality provided by the Server Software. "Device" means each of a computer, workstation, terminal, handheld PC, pager, telephone, personal digital assistant, "smart phone", or other electronic device. "Server Software" means software that provides services or functionality on a computer acting as a server. "Redistribution Software" means software described in Paragraph IV ("Use of Redistribution Software") below.

II. OWNERSHIP OF SOFTWARE PRODUCTS.

SOFTWARE PRODUCTS are licensed to UCwebhost, Inc. from an affiliate of Microsoft Corporation ("Microsoft"). All title and intellectual property rights in and to the SOFTWARE PRODUCTS (and the constituent elements thereof, including but not limited to any images, photographs, animations, video, audio, music, text, and "applets" incorporated into the SOFTWARE PRODUCTS) are owned by Microsoft or its suppliers. The SOFTWARE PRODUCTS are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Your possession, access, or use of the SOFTWARE PRODUCTS does not transfer any ownership of SOFTWARE PRODUCTS or any intellectual property rights to you.

III. USE OF CLIENT SOFTWARE.

You may use the Client Software installed on your Devices by UCwebhost, Inc. only in accordance with the instructions, and only in connection with the services, provided by you by UCwebhost, Inc..

IV. USE OF REDISTRIBUTION SOFTWARE.

In connection with the services provided to you by UCwebhost, Inc., you may have access to certain "sample," "redistributable" and/or software development ("SDK") software code and tools (individually and collectively "Redistribution Software"). YOU MAY NOT USE, MODIFY, COPY, AND/OR DISTRIBUTE ANY REDISTRIBUTION SOFTWARE UNLESS YOU EXPRESSLY AGREE TO AND COMPLY WITH CERTAIN ADDITIONAL TERMS CONTAINED IN THE SERVICES PROVIDER USE RIGHTS ("SPUR") APPLICABLE TO UCwebhost, Inc., WHICH TERMS MUST BE PROVIDED TO YOU BY UCwebhost, Inc.. Microsoft does not permit you to use any Redistribution Software unless you expressly agree to and comply with such additional terms, as provided to you by UCwebhost, Inc..

V. COPIES.

You may not make any copies of the SOFTWARE PRODUCTS; provided, however, that you may (a) make one (1) copy of Client Software on your Device as expressly authorized by UCwebhost, Inc.; and (b) you may make copies of certain Redistribution Software in accordance with Paragraph IV ("Use of Redistribution Software"). You must erase or destroy all such Client Software and/or Redistribution Software upon termination or cancellation of your agreement with UCwebhost, Inc., upon notice from UCwebhost, Inc. or upon transfer of your Device to another person or entity, whichever first occurs. You may not copy any printed materials accompanying the SOFTWARE PRODUCTS.

VI. LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION AND DISASSEMBLY.

You may not reverse engineer, decompile, or disassemble the SOFTWARE PRODUCTS, except and only to the extent that applicable law, notwithstanding this limitation expressly permits such activity.

VII. NO RENTAL.

You may not rent, lease, lend, pledge, or directly or indirectly transfer or distribute SOFTWARE PRODUCTS to any third party, and you may not permit any third party to have access to and/or use the functionality of the SOFTWARE PRODUCTS.

VIII. TERMINATION.

Without prejudice to any other rights, UCwebhost, Inc. may terminate your rights to use the SOFTWARE PRODUCTS if you fail to comply with these terms and conditions. In the event of termination or cancellation, you must stop using and/or accessing the SOFTWARE PRODUCTS, and destroy all copies of the SOFTWARE PRODUCTS and all of its component parts.

IX. NO WARRANTIES, LIABILITIES OR REMEDIES BY MICROSOFT.

ANY WARRANTIES, LIABILITY FOR DAMAGES AND REMEDIES, IF ANY, ARE PROVIDED SOLELY BY UCwebhost, Inc. AND NOT BY MICROSOFT OR ITS AFFILIATES OR SUBSIDIARIES.

X. PRODUCT SUPPORT.

Any product support for the SOFTWARE PRODUCTS is provided to you by UCwebhost, Inc. and is not provided by Microsoft or its affiliates or subsidiaries.

XI. NOT FAULT TOLERANT.

THE SOFTWARE PRODUCTS MAY CONTAIN TECHNOLOGY THAT IS NOT FAULT TOLERANT AND IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN ENVIRONMENTS OR APPLICATIONS IN WHICH THE FAILURE OF THE SOFTWARE PRODUCTS COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL, PROPERTY OR ENVIRONMENTAL DAMAGE.

XII. EXPORT RESTRICTIONS.

The SOFTWARE PRODUCTS are of U.S. origin for purposes of U.S. export control laws. You agree to comply with all applicable international and national laws that apply to the SOFTWARE PRODUCTS, including U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issue by U.S. and other governments. For additional information, see http://www.microsoft.com/exporting.

XIII. LIABILITY FOR BREACH.

In addition to any liability you may have to UCwebhost, Inc., you agree that you will also be legally responsible directly to Microsoft for any breach of these terms and conditions.

UCwebhost, Inc., (Company) will provide You with Hosted Exchange and other Application Services as defined by the plan or plans purchased by you from Company. Features available in the Hosted Exchange offering include:

• Mailboxes

• Public folders

• Distribution lists

• Contacts

• Multiple inbound domain

• Global address list

• Offline address list

  Additional services are also available according to your specific plan configuration

   

II. Technical Support

Company will provide You through your authorized account contacts with technical support on setting up and configuring your account, access to Company’s server, and other issues related to the software provided by Company at no additional charge. Company provides technical support for Microsoft Outlook, Entourage, Outlook Express, OWA via Internet Explorer, and supported wireless devices, but it does not offer customer support for other mail clients, applications, scripts, or components, either from third parties or for those developed by You.

E-mail Technical Support: Email Hours: 24 hours, 7 days per week, 365 days of the year

Technical Support: Monthly Hosting Plans:
Hours: Normal business hours, excluding U.S. national holidays

Only Account Administrators may request information, changes, or technical support for the account. Upon contacting Support You will be required to provide your account username and a full description of the problem including error messages, screenshots, and other troubleshooting information as requested by Technical Support personnel. The Company's response time to technical support issues depends on the level of purchased support service, the complexity of the inquiry and support requests volume. The Technical Support Department assigns the highest priority to customer inquiries related to the servers' unavailability. These issues are addressed first upon notification from a customer. The time to respond guarantee does not apply to any inquiries that require extensive research and testing.

III. Billing and Other Account Related Inquiries

Billing: For billing inquiries, contact Billing Department.
Hours: Normal business hours, excluding U.S. national holidays

Please note: Company must receive notice of billing disputes within sixty days of the date your credit card was charged for services.

Sales: For sales inquiries, contact Sales Department.
Hours: Normal business hours, excluding U.S. national holidays

IV. Escalation.

If you have unresolved concerns with Company’s service or technical support issues, please contact the Customer Support Manager. The initial response should arrive within one business day. As issues may be complex or require extensive investigation, resolution cannot be guaranteed within any certain time period.

V. Control Panels and Server Management.

Account holders are provided with the Company's online account and server management tool, the CONTROL PANEL and USER PANEL Control Panels. This tool is designed to give You control over your account and server services purchased from the Company. You will use the CONTROL PANEL Control Panel to perform all routine account and server management tasks. Help is available online as well as  from within the CONTROL PANEL Control Panel itself. If You experience difficulty using the CONTROL PANEL Control Panel, Technical Support personnel will familiarize You with it. Technical Support shall not be expected to perform for You the tasks that can be done through the CONTROL PANEL Control Panel. The Company’s Shared Hosting services do not include installation of third-party software beyond the standard configuration outlined in your plan’s description. Requests for modification to the standard configuration will be considered on a case-by-case basis. Approval of such modifications will be at the Company’s sole discretion and will be based upon maintaining functionality, usability, security, and stability in the shared server environment.

VI. Maintenance

Scheduled Maintenance: To ensure optimal performance of the servers, the Company will perform routine maintenance on the servers on a regular basis, requiring servers to be removed from service. The Company reserves one hour of server unavailability per month for maintenance purposes. This server unavailability will be excluded from the uptime calculations. The maintenance is typically performed during off-peak hours. The Company will provide You with advanced notice of maintenance whenever possible.

Emergency Maintenance: Under certain circumstances the Company may need to perform emergency maintenance, such as security patch installation or hardware replacement under Hardware Replacement Guarantee. The company will not be able to provide You with advanced notice in case of emergency maintenance. This server unavailability due to emergency maintenance will be excluded from the uptime calculations.

Hardware Replacement Guarantee: Company will use industry standard practices to determine whether server hardware is functioning properly and will replace non-functioning hardware with similarly functioning hardware. Company guarantees hardware replacement within four hours from the time the problem is identified. In the case where this time is exceeded, the excess downtime is counted against Server Availability guarantee.

VII. Network Availability

The Company guarantees at least 99.9% Network Availability. Network Availability is defined as the ability to pass incoming and outgoing TCP/IP traffic through the Company’s network to/from the IP transit provider (Internet backbone). Servers unavailability resulting from loss of Network Availability is excluded from servers availability calculations if the Network Availability loss is caused by any factor(s) beyond the Company's control, including but not limited to such factors as IP transit provider (backbone) or end user's portion of the network (commonly known as “last mile”) failure, denial of service or similar attacks directed at the Company’s servers or the Company’s network.

Network Availability Monitoring

To verify the Application Server Availability, the Company will probe the router port to which the server is connected every two minutes, with a 10-second failure threshold. If the probe is not successful, the port is considered non-operational and NOC personnel on duty are automatically notified. If two or more consecutive port probes fail, network downtime will be registered as the number of minutes between the first and the last failed tests. Downtime of less than five minutes in duration is not recorded. The Company will calculate server uptime and refund eligibility amounts based on this type of monitoring.

VIII. Servers Availability.

Company’s primary commitment is to provide outstanding hosting service to all customers. To support this commitment, Company observes the following schedule of remedies for any failure to meet the express guarantees in this Service Level Agreement.

EXCHANGE SERVER AVAILABILITY

Company guarantees 99.9% Exchange Server Availability, measured on a calendar-month basis. Exchange Server Availability is defined as the ability of a user on your Exchange account to (a) access and retrieve information from the Exchange server, and (b) send and receive messages via the Exchange server, provided that your hosting account is active and enabled. Company monitors the server as a whole but does not monitor individual mailboxes. Exchange server unavailability caused by denial of service attacks, mail bombing, and other flooding techniques will be excluded from Exchange Server Availability calculations. The outgoing email protocol used on Exchange server (SMTP) is a "store-and-forward" type of protocol that does not guarantee immediate delivery of email messages. If the mail server’s first email delivery attempt fails, it will re-attempt delivery according to a predefined schedule. If the message fails to be sent for 24 to 72 hours, the messages will be returned to the sender. Denial of service attacks or other types of attacks directed toward Company’s network of servers resulting in or contributing to downtime will not be included in the Exchange Server Availability calculations.

Exchange Server Availability Monitoring

To verify Exchange Server Availability, Company will open a connection to the server on the port assigned to the Exchange Information Store Service every five minutes, with a 30-second failure threshold. If connection is not successful, server is considered non-operational and systems administration personnel on duty are automatically notified. If two or more consecutive test connections fail, the Exchange server unavailability will be registered as the number of minutes between the first and the last failed tests. Exchange server unavailability of less than five minutes in duration is not recorded. Company will calculate Exchange Server Availability and refund eligibility amounts based on this type of server monitoring

IX. Penalty for Non-Compliance – Refunds

NETWORK AND SERVERS AVAILABILITY

If network or server availability for the full month is below the guaranteed level, the Company will issue a refund to You according to the schedule below. Server availability Amount of the refund as a percentage of monthly fee 99.0% to server guarantee level 5% of monthly fee credited 98.0% to 98.9% 10% of monthly fee credited 95.0% to 97.9% 15% of monthly fee credited 90.0% to 94.9% 25% of monthly fee credited 89.9% or below 2.5% credited for every 1% of lost availability up to the maximum total penalty limit To receive a refund for downtime, You must (a) be in good financial standing with the Company, and (b) send an email or written refund request to the Billing Department in the month immediately following the month for which You are seeking a refund. Refund requests must include your account username and the dates and times of server unavailability. The Billing Department will compare information provided by You to the server availability monitoring data the Company maintains. A refund is issued if the Company can confirm from the monitoring data the server availability warranting the refund.

TOTAL PENALTY LIMITS

The total refund to You for any account may not exceed 50% of the monthly fees charged to that account during the month for which the refund is to be issued, unless the amount to be refunded is less than $1.00 in which case the refund amount will be $1.00. Only one refund and refund level is available in any given month.

X. Server Software.

Company will exercise industry standard practices to ensure that all pre-installed software is correctly configured. In case there is more than one way to configure the software, Company will choose the configuration it determines, in its sole discretion, to be the most appropriate. Company will install security patches, updates, and service packs as soon as practical. Software updates may change system behavior and functionality and as such may negatively affect your applications. Company cannot foresee nor can it be held responsible for service disruption or changes in functionality or performance due to implementation of software patches and upgrades. If such disruption or changes occur, Company will provide its best efforts to remedy the situation as soon as possible after being notified of the problem by You. Company may be required by its software licensors to upgrade to the latest versions of the software. Licensor-required upgrades will be performed free of charge and upon reasonable notice to You. Software upgrades on Company’s servers will occur at Company’s discretion upon reasonable notice to You.

Company is not responsible for problems that may arise from incompatibilities between new versions of the software and your content, regardless of whether it was a requested, required or a discretionary upgrade. Nevertheless, Company will provide its best efforts to help You to find a workaround solution.

XI. Storage Capacity; Data Transfer; Server Resources

Each account is allotted storage capacity and data transfer amounts on Company’s servers according to the plan and options selected by You. This storage size and data transfer allotments can be increased through the CONTROL PANEL Control Panel for an additional charge up to the maximum amount allowed for each plan or service. The servers may stop accepting, processing, or delivering data when the purchased limit is reached thus causing server unavailability or data loss. Company shall not be held responsible for such unavailability or data losses. Shared servers resources are shared among all accounts hosted on the same server. Company configures servers in such a way so the accounts are separated from each other to the maximum possible degree. However, due to its nature, shared resources accessibility level cannot be guaranteed.

XII. Hosted Exchange Specific Limitations

MAILBOX AND PUBLIC FOLDER STORAGE CAPACITY

Each mailbox and public folder has its own storage limit. When the storage limit is reached on an individual mailbox or folder, the Exchange servers may stop sending or receiving messages leading to possible server unavailability or data loss. To prevent such occurrences, You can manage each mailbox and public folder storage limit, using the CONTROL PANEL Control Panel. Company is not responsible for unavailability or data losses caused by any mailbox or folder exceeding its storage limit. You can obtain a detailed disk usage report from the CONTROL PANEL Control Panel.

TOP LEVEL FOLDERS AND SUB-FOLDERS

The Exchange Server retains ownership of the two top layers of the public folder hierarchy, "Public Folders", and under that folder, the "All Public Folders". This is set by the Exchange Server architecture and cannot be modified. The CONTROL PANEL Control Panel allows you to create and manage mail-enabled Top-Level public folders. Only Top-Level public folders can be made visible in the Global Address List. Only Top-Level public folders can be made mail-enabled. There is a maximum limit of 5 Top-Level public folders.

ADDRESS LISTS

Company creates one Global Address List and one Offline Address List for Your account. Global Address List and Offline Address List are available to all users within your account. Global Address List lists all mailboxes, contacts and distribution lists on your account, unless you explicitly choose to hide any of these objects from a Global Address List. Offline Address List is a replica of Global Address List and is available in MS Outlook when you are working offline. Global Address List is replicated to Offline Address List on a daily basis.

LIMITS

The following limits are set for the Exchange Hosting package:

• up to 12 Inbound Domains

• up to 60 distribution lists

• up to 100 contacts

• up to 200 recipients per message

• incoming/outgoing message size limit is 20 MB

ANTI-VIRUS CHECKING

Company installs third-party anti-virus software on its Exchange servers. This software is configured to check all messages coming to or leaving the Exchange server according to the virus-detecting heuristics provided with the software. As a part of the Anti-virus software service, these heuristics are regularly updated.  Messages sent between mailboxes on the server are not scanned. If a virus is detected or if a message attachment cannot be scanned (for example when it is encrypted or corrupted), the message and its attachments are permanently deleted. Neither the intended recipient(s) nor the message sender receives any notification of the message deletion. Messages with attachments larger than 5MB are not scanned. Company advises you to use up-to-date, local anti-virus software. Company is not responsible for infection of end-user devices or lost or corrupted messages.

ANTI-SPAM MESSAGE FILTERING

Company installs third-party provided, anti-SPAM software on its Exchange servers. This software is configured to check all incoming messages according to the SPAM-detecting heuristics provided with the software. As a part of the anti-SPAM software service, the SPAM-detecting heuristics are regularly updated. Company is not responsible for lost or corrupted messages due to Anti-SPAM filtering.

WIRELESS EXCHANGE SERVER ACCESS

As an add-on service, Company provides wireless access to the Exchange server through the use of third-party provided software. Limited customer control of Wireless Exchange Server Access configuration is available via CONTROL PANEL Control Panel. Success in configuration and set up of wireless Exchange Server Access is highly dependent upon the device and the wireless access provider chosen by You. Therefore Company can only assure that it will make commercially reasonable efforts to assist you in configuring and supporting your wireless Exchange server access for the portions of the access not under Company’s control.

XIII. Customer Data Privacy Protection; Confidentiality

All data created by You and/or stored by You within Company's applications and servers are considered by Company to be your property. Company is committed to protect your privacy and confidentiality of your data to the maximum extent permitted by law and/or accepted by industry standards.  We will not access, view or review any of your private data accessible to us (including but not limited to that contained in your web server files, e-mail messages, calendars, notes, contacts, memos or public folders) unless: (i) either you or a competent government agency specifically requests us to; (ii) when performing routine backup and restore operations, virus scan and virus removal, spam and content filtering; (iii) if such access, view or review is urgent and necessary to protect personal safety, perform troubleshooting, restore systems operation in the event of a server failure, remove illegal or offending (e.g. pornographic, violating our policies, etc.) content or prevent a server crash or other damage. Under no other circumstances will Company access your private data without your prior permission. We will not share your confidential data with any third parties without your prior permission, except to the extent required by law or governmental agencies or necessary to render our services to you. Our employees and agents who have access to your confidential data are restricted from disclosing or using such information for any purpose other than in connection with their services to Company.

XIV. Data Integrity.

Company employs RAID techniques to ensure the integrity of the data on its servers and to prevent data loss in the event of hardware failure. Company performs routine server backups for disaster recovery purposes only. Server backup scope and scheduling is at Company's sole discretion. COMPANY SHALL NOT PERFORM BACKUP OR RESTORE THE DATA UPON YOUR REQUEST UNLESS SUCH BACKUP IS PROVIDED AS A SERVICE UNDER YOUR PURCHASED PLAN.

EXCHANGE SERVERS BACKUP AND RESTORE

Standard Exchange Backup Services include full Exchange server backup on a predefined schedule several times per week to a shared backup device over the network. Backup copy retention time is one week; Standard Exchange Backup Services do not include the process of restoration of files, mailboxes, folders or parts thereof. To request restoration of mailbox or public folder from Exchange server, please request from Support an Exchange Restoration Request form; complete and return the form to Company. Company will first attempt to locate and restore the content from the Exchange server before restoration from backup media is attempted. Restored mailbox/public folder content will be provided in Microsoft® Outlook® Personal Folder (.pst) file format.

XV. Data Retention.

WHILE YOUR ACCOUNT IS ACTIVE, COMPANY SHALL BE RESPONSIBLE FOR RETAINING ANY OF YOUR DATA INCLUDING BUT NOT LIMITED TO THE CONTENT OF PRIVATE AND PUBLIC INFORMATION STORE, ACTIVE DIRECTORY, LOG FILES, AND BACKUP COPIES. COMPANY SHALL NOT BE RESPONSIBLE FOR RETAINING ANY OF YOUR DATA AFTER ACCOUNT TERMINATION. ALL DATA IS DELETED FROM THE SERVERS AFTER THE ACCOUNT IS TERMINATED AND FROM BACK-UPS DURING SCHEDULED BACK-UP ROTATION. COMPANY SHALL NOT RESTORE, PROVIDE ON ANY STORAGE MEDIA OR SEND OUT ANY DATA PERTAINING TO TERMINATED ACCOUNTS.

XVI. Customer Responsibilities.

To access Company services You must provide at the very minimum:

• an Internet connection with sufficient bandwidth and quality to allow trouble-free browsing and data uploading and downloading and that does not constrain Microsoft Exchange functionality;

• a fully functional Internet browser;

• a fully functional POP/IMAP/SMTP e-mail program (client) such as Microsoft Outlook Express or Microsoft® Outlook for MAPI connections to Exchange server;

• tools to develop and publish content as You find suitable and necessary;

• tools to access database servers if such services are purchased by You.

XVII. Privacy Statement.

Company values the privacy of its customers.