You may not publish or transmit via eleven2’s service any content that eleven2 reasonably believes:

• constitutes child pornography;
• constitutes pornography or adult related material;
• is excessively violent, incites violence, threatens violence, or contains harassing content or hate speech;
• is unfair or deceptive under the consumer protection laws of any jurisdiction, including chain letters and pyramid schemes;
• is defamatory or violates a person’s privacy;
• creates a risk to a person’s safety or health, creates a risk to public safety or health, compromises national security, or interferes with a investigation by law enforcement;
• improperly exposes trade secrets or other confidential or proprietary information of another person;
• is intended to assist others in defeating technical copyright protections;
• clearly infringes on another person’s trade or service mark, patent, or other property right;
• promotes illegal drugs, violates export control laws, relates to illegal gambling, or illegal arms trafficking;
• is otherwise illegal or solicits conduct that is illegal under laws applicable to you or to eleven2; or
• is otherwise malicious, fraudulent, or may result in retaliation against eleven2 by offended viewers.

Content “published or transmitted” via eleven2’s service includes Web content, e-mail, bulletin board postings, chat, and any other type of posting or transmission that relies on any Internet service provided by eleven2.

You must take reasonable security precautions. You must protect the confidentiality of your password, and you should change your password periodically.

You must obtain eleven2’s advance approval for any bulk commercial e-mail, which will not be given unless you are able to demonstrate all of the following to eleven2’s reasonable satisfaction:

• Your intended recipients have given their consent to receive e-mail via some affirmative means, such as an opt-in procedure;
• Your procedures for soliciting consent include reasonable means to ensure that the person giving consent is the owner of the e-mail address for which the consent is given;
• You retain evidence of the recipient’s consent in a form that may be promptly produced on request, and you honor recipient’s and eleven2’s requests to produce consent evidence within 72 hours of receipt of the request.
• The body of the e-mail must describe how the e-mail address was obtained, for example, “You opted in to receive this e-mail promotion from our Web site or from one of our partner sites,” and information on how to request evidence of the consent, for example, “If you would like to learn more about how we received your e-mail address please contact us at abuse@eleven2.com.
• You have procedures in place that allow a recipient to easily revoke their consent – such as a link in the body of the e-mail, or instructions to reply with the word “Remove” in the subject line. Revocations of consent are honored within 72 hours, and you notify recipients that their revocation of their consent will be honored in 72 hours;
• You must post an abuse@eleven2.com e-mail address on the first page of any Web site associated with the e-mail, you must register that address at abuse.net, and you must promptly respond to messages sent to that address;
• You must have a Privacy Policy posted for each domain associated with the mailing;
• You have the means to track anonymous complaints;
• You may not obscure the source of your e-mail in any manner. Your e-mail must include the recipients e-mail address in the body of the message or in the “TO” line of the e-mail; and
• You otherwise comply with the CAN SPAM Act and other applicable law.

These policies apply to messages sent using your eleven2 service, or to messages sent from any network by you or any person on your behalf that directly or indirectly refer the recipient to a site hosted via your eleven2 service. In addition, you may not use a third party e-mail service that does not practice similar procedures for all its customers.

Eleven2 may test and otherwise monitor your compliance with its requirements, including requesting opt-in information from a random sample of your list at any time.

You may not send any unsolicited e-mail, either in bulk or individually, to any person who has indicated that they do not wish to receive it.

You must comply with the rules of any other network you access or participate in using your eleven2’s services.

You may not publish, distribute, or otherwise copy in any manner any music, software, art, or other work protected by copyright law unless:

• you have been expressly authorized by the owner of the copyright for the work to copy the work in that manner;
• you are otherwise permitted by established United States copyright law to copy the work in that manner.

Eleven2 will terminate the service of repeat copyright infringers.

If you believe your copyright is being infringed by a person using the eleven2 network, please send your notice of copyright infringement to abuse@eleven2.com

Your notice must include the following:

• A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
• Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted words at a single site are covered by a single notification, a representative list of such works at that site;
• Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit eleven2 to locate the material;
• Information reasonably sufficient to permit eleven2 to contact you, such as an address, telephone number, and, if available, an e-mail address;
• A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, the copyright owner’s agent, or the law;
• A statement that the information in the notification is accurate, and under penalty of perjury that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

When you sign up for our service, we will ask you to provide contact information such as your name, address, telephone numbers, e-mail addresses, and payment information such as credit card number and expiration date.

We may ask you to complete user surveys, and to provide certain demographic information, such as age, gender, special interests, etc. You do not have to provide this type of information to use our service if you do not want to.

If you contact us for customer support, we may also ask you for information about your operating system, software and other technical matters.

When you visit our Web site we will capture your IP Address, time of and duration of visit, and time and duration of the pages on our Web site that you view. We may tie this information to the personally identifiable information we have about you.

We will also place a cookie that will identify you to us as a repeat visitor or a customer when you visit our Web site. See “What is a Cookie” below. We may tie this cookie to the personally identifiable information we have about you.

If we send you an e-mail, we may include a marker that will allow identifying e-mail that is opened and viewed.

We will use your personally identifiable information only as follows:

• For payment purposes and to provide customer support;
• To announce special offers or provide other information from time to time via e-mail. We may also send e-mails announcing special offers by our third parties, but we will not provide the third parties with your e-mail address or other personally identifiable information. If you do not wish to receive these e-mails, you may opt out of future e-mails at any time by following the instructions included in the e-mail;
• To improve our service and the marketing of our service. For example, we may use the information we gather from user surveys, demographic data, and web site visits to help us improve or target our Web site and customize your visit.

We will not provide any personally identifiable information about you to any other person other than:

• a law enforcement or regulatory agency at their request;
• a person or company who acquires our business;
• third parties who perform services on our behalf (such as payment processing), subject to the third party agreeing with us that it will keep your personally identifiable information confidential;
• To our subsidiaries and affiliates, or
• As otherwise needed to protect or enforce or rights or the rights of others.

We absolutely do not transfer or sell your information for inclusion on third party e-mail or other marketing lists.

We may share aggregate statistical data about our customers with third parties, such as advertisers or suppliers. This aggregate statistical data will not identify you personally.

A “cookie” is an alphanumeric identifier that is unique to your browser. The cookie will identify your browser to us when you visit our web site so that we may customize your visit.

We store your personally identifiable information and payment information in a database which has numerous protection policies in place to ensure its security. We encrypt some sensitive data such as passwords and/or but not limited to credit card numbers.

Our service is not available to children under the age of 13, and we will not intentionally maintain information about anyone under the age of 13.

Subject to the terms of this Agreement, and contingent on Customer’s satisfaction of eleven2’s credit approval requirements, eleven2 agrees to provide the web hosting services described in the Order for the fees stated in the Order.

The initial service term of the Agreement shall begin on the date that eleven2 generates an e-mail message to Customer announcing the activation of the Customer’s account (the “Service Commencement Date”) and shall continue for the number of months stated in the Order (the “Initial Term”). Upon expiration of the Initial Term, this Agreement shall automatically renew unless eleven2 or Customer provides the other with written notice of non-renewal through the customer center which is located at http://vip.eleven2.com. The Initial Term and any Renewal Term may be referred to collectively in this Agreement as the “Term.”

(a) Fees.
Fees are payable in advance on the first day of each billing cycle. Customer’s billing cycle shall be monthly, quarter, semi-annually, annually, or bi-annually as indicated on the Order, beginning on the Service Commencement Date. Eleven2 may require payment for the first billing cycle before beginning service. If the Order provides for credit/debit card billing, Customer authorizes eleven2 to bill subsequent fees to the credit/debit card on or after the first day of each successive billing cycle during the Term of this Agreement; otherwise eleven2 will invoice Customer via electronic mail to the Primary Customer Contact listed on the Order. Invoiced fees may be issued on or before the 1st day of each billing cycle, and the fees shall be due on the 7th day following invoice date, but in no event earlier than the first day of each billing cycle.

Payments must be made in United States dollars. Customer is responsible for providing eleven2 with changes to billing information (such as credit card expiration, change in billing address) at its option, eleven2 may accrue charges to be made to a credit/debit card until such charges exceed $10.00. Eleven2 may charge interest on overdue amounts at the lesser of 1.5% per month or the maximum non-usurious rate under applicable law. Eleven2 may suspend the service without notice if payment for the service is overdue. Fees not disputed within sixty (60) days of due date are conclusively deemed accurate. Customer agrees to pay eleven2’s reasonable reinstatement fee following a suspension of service for non-payment, and to pay eleven2’s reasonable costs of collection of overdue amounts, including collection agency fees, attorney fees and court costs.

(b) Fee Increases.
Eleven2 may increase its fees for services effective the first day of a Renewal Term by giving notice to Customer of the new fees at least forty five (45) days prior to the beginning of the Renewal Term, and if Customer does not give a notice of non-renewal as provided in Section 2 above, the Customer shall be deemed to have accepted the new fee for that Renewal Term and any subsequent Renewal Terms (unless the fees are increased in the same manner for a subsequent Renewal Term).

(c) Taxes.
At eleven2’s request Customer shall remit to eleven2 all sales, VAT or similar tax imposed on the provision of the services (but not in the nature of an income tax on eleven2); regardless of whether eleven2 fails to collect the tax at the time the related services are provided.

(d) Early Termination.
Customer acknowledges that the amount of the fee for the service is based on Customer’s agreement to pay the fee for the entire Initial Term, or Renewal Term, as applicable. In the event eleven2 terminates the Agreement for Customer’s breach of the Agreement in accordance with Section 9 (Termination), or Customer terminates the service other than in accordance with Section 9 (Termination) for eleven2’s breach, the unpaid fees for each billing cycle remaining in the Initial Term or then-current Renewal Term, as applicable, are due on the business day following termination of the Agreement.

Customer agrees to use the service in compliance with applicable law and eleven2’s Acceptable Use Policy posted at http://www.eleven2.com/legal/acceptableusepolicy/ (the “AUP”), which is hereby incorporated by reference in this Agreement. Customer agrees that eleven2 may, in its reasonable commercial judgment consistent with industry standards, amend the AUP from time to time to further detail or describe reasonable restrictions and conditions on Customer’s use of the Services. Amendments to the AUP are effective on the earlier of eleven2’s notice to Customer that an amendment has been made, or the first day of any Renewal Term that begins subsequent to the amendment. Customer agrees to cooperate with eleven2’s reasonable investigation of any suspected violation of the AUP. In the event of a dispute between eleven2 and Customer regarding the interpretation of the AUP, eleven2’s commercially reasonable interpretation of the AUP shall govern.

Customer represents and warrants to eleven2 that the information he, she or it has provided and will provide to eleven2 for purposes of establishing and maintaining the service is accurate. If Customer is an individual, Customer represents and warrants to eleven2 that he or she is at least 18 years of age. Eleven2 may rely on the instructions of the person listed as the Primary Customer Contact on the Order with regard to Customer’s account until Customer has provided a written notice changing the Primary Customer Contract.

Customer agrees to indemnify and hold harmless Eleven2, Eleven2’s affiliates, and each of their respective officers, directors, agents, and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorneys fees) brought by a third party under any theory of legal liability arising out of or related to the actual or alleged use of Customer’s services in violation of applicable law or the AUP by Customer or any person using Customer’s log on information, regardless of whether such person has been authorized to use the services by Customer.

ELEVEN2 DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW ELEVEN2 DISCLAIMS ANY AND ALL WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL SERVICES ARE PROVIDED ON AN “AS IS” BASIS.

NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE, ARISING IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILIY OF SUCH DAMAGES.

NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF ELEVEN2 AND ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL BE A PAYMENT OF MONEY NOT TO EXCEED THE AMOUNT PAYABLE BY CUSTOMER FOR THREE MONTHS OF SERVICE.

(a) Suspension of Service.
Customer agrees that eleven2 may suspend services to Customer without notice and without liability if: (i) eleven2 reasonably believes that the services are being used in violation of the AUP; (ii) Customer fails to cooperate with any reasonable investigation of any suspected violation of the AUP; (iii) eleven2 reasonably believes that the suspension of service is necessary to protect its network or its other customers, or (iv) as requested by a law enforcement or regulatory agency. Customer shall pay eleven2’s reasonable reinstatement fee if service is reinstituted following a suspension of service under this subsection.

(b) Termination.
The Agreement may be terminated by Customer prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability if eleven2 fails in a material way to provide the service in accordance with the terms of the Agreement and does not cure the failure within ten (10) days of Customer’s written notice describing the failure in reasonable detail. The Agreement may be terminated by eleven2 prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability as follows: (i) upon ten (10) days notice if Customer is overdue on the payment of any amount due under the Agreement; (ii) Customer materially violates any other provision of the Agreement, including the AUP, and fails to cure the violation within thirty (3) days of a written notice from eleven2 describing the violation in reasonable detail; (iii) upon one (1) days notice if Customer’s Service is used in violation of a material term of the AUP more than once, or (iv) upon one (1) days notice if Customer violates Section 5 (Customer Information) of this Agreement. Either party may terminate this agreement upon ten (10) days advance notice if the other party admits insolvency, makes an assignment for the benefit of its creditors, files for bankruptcy or similar protection, is unable to pay debts as they become due, has a trustee or receiver appointed over all or a substantial portion of its assets, or enters into an agreement for the extension or readjustment of all or substantially all of its obligations.

Customer agrees that eleven2 may, without notice to Customer, (i) report to the appropriate authorities any conduct by Customer or any of Customer’s customers or end users that eleven2 believes violates applicable law, and (ii) provide any information that it has about Customer or any of its customers or end users in response to a formal or informal request from a law enforcement or regulatory agency or in response to a formal request in a civil action that on its face meets the requirements for such a request.

Customer agrees to maintain a current copy of all content hosted by eleven2 notwithstanding any agreement by eleven2 to provide back up services.

Upgrades and other changes in eleven2’s network, including, but not limited to changes in its software, hardware, and service providers, may affect the display or operation of Customer’s hosted content and/or applications. Eleven2 reserves the right to change its network in its commercially reasonable discretion, and eleven2 shall not be liable for any resulting harm to Customer.

Notices to eleven2 under the Agreement shall be given via electronic mail to the e-mail address posted for customer support on http://www.eleven2.com/aboutus/contact/ Notices to Customer shall be given via electronic mail to the individual listed as the Primary Customer Contact on the Order. Notices are deemed received on the day transmitted, or if that day is not a business day, on the first business day following the day delivered. Customer may change his, her or its notice address by a notice given in accordance with this Section.

Eleven2 shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond eleven2’s control, including, without limitation, significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.

The Agreement shall be governed by the laws of the State of Texas, exclusive of its choice of law principles, and the laws of the United States of America, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL BE THE STATE AND FEDERAL COURTS IN HARRIS COUNTY, TEXAS, AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO.

Each party acknowledges and agrees that the other party retains exclusive ownership and rights in its trademarks, service marks, trade secrets, inventions, copyrights, and other intellectual property. Neither party may use the other party’s name or trade mark without the other party’s prior written consent. The parties intend for their relationship to be that of independent contractors and not a partnership, joint venture, or employer/employee. Neither party will represent itself to be agent of the other. Each party acknowledges that it has no power or authority to bind the other on any agreement and that it will not represent to any person that it has such power or authority. This Agreement may be amended only by a formal written agreement signed by both parties. The terms on Customer’s purchase order or other business forms are not binding on eleven2 unless they are expressly incorporated into a formal written agreement signed by both parties. A party’s failure or delay in enforcing any provision of the Agreement will not be deemed a waiver of that party’s rights with respect to that provision or any other provision of the Agreement. A party’s waiver of any of its right under the Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not. The captions in the Agreement are not part of the Agreement, but are for the convenience of the parties. The following provisions will survive expiration or termination of the Agreement: Fees, indemnity obligations, provisions limiting liability and disclaiming warranties, provisions regarding ownership of intellectual property, these miscellaneous provisions, and other provisions that by their nature are intended to survive termination of the Agreement. There are no third party beneficiaries to the Agreement. Neither insurers nor the customers of resellers are third party beneficiaries to the Agreement. Customer may not transfer the Agreement without eleven2’s prior written consent. Eleven2’s approval for assignment is contingent on the assignee meeting eleven2’s credit approval criteria. Eleven2 may assign the Agreement in whole or in part.

This Agreement together with the Order and AUP constitutes the complete and exclusive agreement between the parties regarding its subject matter and supercedes and replace any prior understanding or communication, written or oral.

Eleven2, Inc. reserves the right to refuse service to any active or in-active customers for any reason it deems necessary.