This legally binding contract (the "Agreement") is by and between SBWinVPS, Inc. ("SBWinVPS"), and you and your assigns, employees, agents or contractors ("You", "Your", the "Client") and is effective as of the date you purchase dedicated hosting services from SBWinVPS. This Agreement sets forth the terms and conditions of Your use of SBWinVPS's Dedicated Server services (collectively, the "Services") and represents the entire agreement between You and SBWinVPS relating to the Services. This Agreement contains provisions that set forth SBWinVPS's Acceptable Use Policy, Privacy Policy and guarantees of a certain service level (found in the "Uptime Guarantee" and "Service Level" sections below).

By purchasing the Services, You acknowledge and agree that You have read, understand, acknowledge and agree to be bound by all the terms and conditions of this Agreement, along with any new, different or additional terms, conditions or policies that SBWinVPS may establish and post on its website from time to time.

Description of Services

SBWinVPS provides the Services to its customers for a monthly fee. SBWinVPS will provide You an account on one or more of its dedicated servers, provided, however, You abide by the terms and conditions set forth in this Agreement and in any other agreement pertaining to other services you may purchase. SBWinVPS reserves the right to modify its network and facilities used to provide the Services for purposes including, but not limited to, accommodating evolving technology and increased network demand, and providing enhanced services. SBWinVPS shall use reasonable efforts to notify You in advance of any planned changes to SBWinVPS's network or facilities that may adversely affect the Services provided under this Agreement.

Fees

Fees for Services ordered by You shall be charged beginning on the date of the initial order and that date shall serve as the monthly anniversary date for all future billings including one time fees, upgrades, additional services, cancellations and service credits. Fees are due in advance of the monthly service cycle and will be billed on the anniversary date of each month.

From time to time it may be necessary to make adjustments in the fees and surcharges charged for the Services in order to cover certain changing costs (e.g., power) incurred by SBWinVPS in providing the services. Such adjustments will be reflected on the statement or invoice provided to you for the Services, and you agree to pay for the fees and surcharges for the Services, as adjusted.

Late Payment

SBWinVPS reserves the right to charge a late fee of 1.5% per invoice per month on late payments. Invoices will be automatically considered late once the invoice due date has passed.

Non-payment Termination

In the event you fail to pay your invoice within 3 days of the due date, we reserve the right to suspend your service.

If you are still past due on the 5th day from the due date on the invoice, we reserve the right to terminate your service entirely and reformat your server.

If you are terminated for non-payment, we also reserve the right to refer your account to a third party collection agency and you agree to pay any collection fees or legal fees we may be charged to collect on your debt.

Overage Billing

"Overage" is defined as usage of the Services provided by SBWinVPS to You in excess of the allocated limitation. Overages are charged for SAN, Backup, Bandwidth and Professional Services (administrative time) used in excess of the amount allocated to Your account.

You agree to pay the then-current Overage fees and charges for the SBWinVPS services, including backup and bandwidth Overage fees, upon receipt of an invoice. Usage information is available in Total Server Control and through your SBWinVPS Account Executive.

Overage fees can be avoided by subscribing to a higher service plan.

Cancellation and Refunds

SBWinVPS is not able to schedule cancellation for a specific time or date. To submit a cancellation request. When you request cancellation, we will follow this process: We will first contact you to confirm the cancellation and verify that you are authorized under your account to cancel it. Then, we will immediately suspend billing and cancel the server. We are not able to provide scheduled cancellations and all cancellations are effective immediately. Regarding mid-month or mid-period cancellations, SBWinVPS will not issue pro-rated refunds for cancellations received in the middle of a payment cycle.

Refunds will not be given on a pro-rated basis for Services provided in a given billing period. Receipt by you of any Services in a given period will obligate you to pay for the Services during that entire billing period.

Term and Termination and Money Back Guarantee

You agree to a month to month term for the Services unless otherwise agreed to in writing. The month to month term for services is automatically renewed each month unless either party notifies the other in writing of its desire that the Agreement not be renewed, no later than three (3) days before the next upcoming anniversary date for billing. You may cancel Your account by terminating this Agreement in this manner by contacting the SBWinVPS billing department.

SBWinVPS may terminate this Agreement effective immediately and without notice upon any breach by You of any of the terms of this Agreement. In such event, SBWinVPS shall have no obligation to refund any fees paid in advance by You.

At this time, SBWinVPS does not offer a refund-based MBG of any kind.

Chargebacks and Payment Disputes

Under this Terms of Service agreement you must first contact SBWinVPS to attempt to resolve any billing disputes before contacting your bank or credit card company to dispute the charges. You further agree that any billing disputes must be submitted in writing to our billing department within one month of the invoice payment in question.

By using our services You agree to the above policy and to contact SBWinVPS before contacting your financial institution to seek a resolution.

In the event you dispute charges contrary to this agreement, we reserve the right to add a $150 collection chargeback fee and to refer your account or sell your debt to a third party collection agency. We also reserve the right to take further legal action against you.

Promotional or Special Offers: Pre-payment Offers

From time to time, SBWinVPS may offer discounted pricing for initial introductory periods (e.g., discounted fees for the first months service.) A condition of such discounted pricing may be the requirement that prepayment for a period longer than the introductory period be paid. For example, the first month's service may be offered for a discount, with the standard pricing going into effect during the second month, with a quarterly prepayment being required. Promotional offers are non-refundable.

Promotional or Special Offers: Other Types of Offers

From time to time, SBWinVPS may offer promotional or special offers as sales incentives. These offers may be comprised of discounts, free time, free services, discounted services, trial offer periods and other types of offers. Such offers cannot be combined with other offers unless otherwise stated and are one-time use offers. One offer per client only. Offers are valid only where they are permitted by law. Offers are void where prohibited. Some offers (example: "Three Months Free Load Balancing Service") require You, the Client, to contact SBWinVPS prior to the expiration of the trial period in order to avoid being re-billed. Offers which provide a discounted monthly rate for a specified period of time will reset automatically to the full monthly rate once the promotional period has passed and You, the Client, agree to pay, in full, the full monthly rate, unless You cancel in advance.

Tortuous Conduct

Any abuse towards any SBWinVPS employee will not be tolerated. You are expected to request and respond to support and other issues in a professional manner, when emailing, calling or submitting online tickets to SBWinVPS. Any cursing, yelling, or further intentional disruptive behavior aimed at SBWinVPS or its employees shall be considered a violation of this Terms of Service agreement.

Any threat; whether orally, verbally, in written, via E-mail, via Live Chat, delivered by second parties or delivered in any other way, and directed towards SBWinVPS or any of SBWinVPS's employees, partners, staff, contractors, sub-contractors, facilities, offices, etc. shall be construed as a violation of this Terms of Service agreement. Threats of physical violence will be directed to the proper authorities.

No refunds shall be given when the above Tortuous Conduct clause is violation and necessitates the termination of an account or services.

License to Host

You hereby grant to SBWinVPS a non-exclusive, royalty-free, worldwide right and license during the term of this Agreement to do the following to the extent necessary to provide the Services under this Agreement: (a) digitize, convert, install, upload, select, order, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit, distribute, publish, publicly display, publicly perform and hyperlink any content uploaded by You; and (b) make archival or backup copies of content uploaded by You to the SBWinVPS servers. SBWinVPS shall have the right, but not the obligation, to make backup copies of the data uploaded by You to the SBWinVPS servers. You are responsible for any of your content residing on SBWinVPS's servers and for the backup thereof.

Storage and Security

At all times, You bear full risk of loss of any content and software you place on the SBWinVPS servers. You are entirely responsible for maintaining the confidentiality of Your password and account information. You acknowledge and agree that You are solely responsible for all acts, omissions and use under and charges incurred with Your account or password or in connection with the server or any of the content displayed, linked, transmitted through or stored on the server.

SBWinVPS does not undertake any obligation to provide management or security services unless you specifically request it to do so. If any technology specifically associated with your account requires updating, You must make a request for such update through SBWinVPS's ticketing system.

You shall be solely responsible for undertaking measures to: (i) prevent any loss or damage to Your content; (ii) maintain independent archival and backup copies of Your content; and (iii) ensure the security, confidentiality and integrity of Your content transmitted through or stored on SBWinVPS servers. SBWinVPS shall have no liability to You or any other person for loss, damage or destruction of any of Your content.

Uptime Guarantee

"Uptime" refers to the amount of time the Services are available, as measured solely and only by SBWinVPS's internal monitoring systems. "Downtime" refers to the amount of time the Services are unavailable, as measured solely and only by SBWinVPS's internal monitoring systems. SBWinVPS guarantees that it's Networking and Connectivity services will be available 100% of the time. In the event such level of service is not provided, SBWinVPS will credit your account in an amount as determined in the chart below, reflecting credit percentages of the monthly fees paid by You to SBWinVPS for the Services, but not payments made for any of the following products and services: domain name registration, software licenses, IP address charges, set up fees, shipping and handling, SSL certificate fees, labor charges, and other services which are unrelated to Uptime.

1. 100% will result in a credit of: 0%

2. 99.1% to 99.9% will result in a credit of: 5%

3. 98% to 99% will result in a credit of: 10%

4. 95% to 97.9% will result in a credit of: 25%

5. 90% to 94.9% will result in a credit of: 50%

6. 89% or below will result in a credit of: 100%

To receive a credit, You must make a request by sending an email message to billing@SBWinVPS.com. Each request in connection with this Agreement must include the dates and times of the Downtime, the name and IP address of the server or servers which experienced the Downtime. The request must be received by SBWinVPS within ten (10) business days after the incident of Downtime. If the unavailability is confirmed by SBWinVPS, credit will be applied to Your SBWinVPS account within thirty (30) days of receipt of Your credit request.

The total amount credited to You in a particular month under this Agreement shall not exceed the total amount of fees paid by You for such month for the affected Services. Credits are exclusive of any applicable taxes charged to You or collected by SBWinVPS and are Your sole and exclusive remedy with respect to any Downtime.

The provisions of the Agreement pertaining to Force Majerue are unaffected by these terms referring to Uptime Guarantee. Moreover, downtime caused by any of the following shall not result in any obligation by SBWinVPS to provide credit to You:

1. emergency maintenance

2. scheduled maintenance

3. system upgrades

4. domain name system (DNS) problems outside of SBWinVPS's control

5. issues with FTP, POP, IMAP, or SMTP customer access

6. Acts or omissions by You or any of Your employees or agents, resulting in downtime

7. Any negligence, willful misconduct, or use of the services in breach of SBWinVPS's Acceptable Use Policy

8. Problems with users' web browsers, DNS, or other caching that might make it appear the Services are unavailable even though others can still access the SBWinVPS servers.

Hardware Replacement Guarantee

SBWinVPS strives to maintain the integrity of the hardware used to provide its services, and any Downtime caused by hardware failure shall be credited pursuant to this Agreement. SBWinVPS maintains a stock of all essential hardware necessary to provide the Services. SBWinVPS shall replace any and all substantially malfunctioning hardware within 1 hour of SBWinVPS becoming aware of such substantial malfunction.

The amount of time for replacement of hardware shall be measured from the moment that SBWinVPS determines that the hardware must be replaced, and does not include time spent diagnosing the problem, researching other solutions, investigating the cause of the failure or time spent installing software, restoring backups or other, similar situations.

In the event that SBWinVPS fails to meet this hardware replacement guarantee, SBWinVPS will issue, to You, account credits in the amount of 10% of the base monthly server rent for each hour after the first hour of the monthly service fee for the server in question to a maximum of 50% of the cost of the server itself (excluding any management, upgrades or additional services associated with the server in question.)

To receive a credit, You must make a request by sending an email message to billing@SBWinVPS.com. Each request in connection with this Agreement must include the dates and times of the hardware replacement situation, the name and IP address of the server or servers which experienced delayed replacement. The request must be received by SBWinVPS within ten (10) business days after the incident. Upon confirmation by SBWinVPS, credit will be applied to Your SBWinVPS account within thirty (30) days of receipt of Your credit request.

Acceptable Use

You agree not to use the Services to:

- upload, post, email, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;

- administer IRC;

- harm minors in any way;

- impersonate any person or entity;

- "stalk" or otherwise harass another person;

- forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Services;

- upload, post, email, transmit or otherwise make available any Content that You do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);

- upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;

- upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," or "pyramid schemes;"

- upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;

- interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;

- intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law;

- provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act; and/or

- collect or store personal data about other users in connection with the prohibited conduct and activities set forth in the paragraphs above</span>