Server Hosting Agreement

This Server Hosting Agreement (the “SHA”) applies to the server hosting services provided by Data393 (“Data393”) to you, as Data393’s customer (“You” or “Customer”). This SHA together with all exhibits, addenda, amendments, and Service Order Forms are collectively the “Agreement”. This Agreement is valid and binding upon Customer’s continuing use of the Services, defined below. In exchange for the covenants and promises herein, which the parties agree are sufficient consideration, the parties agree as follows.

1. SERVICES.

This Agreement applies to Customer’s purchase of dedicated server(s) capacity or virtual private server capacity, data transport and managed services ("Services") from Data393 as set forth in a service order form or otherwise provided to Customer by Data393 (“Service Order Form”). Each Service Order Form shall set forth the description, rates, charges, discounts, and other terms applicable to the Services purchased by Customer.

2. AGREEMENT TERM.

By using Services, You agree to adhere to this Agreement. Data393 reserves the right to modify this Agreement without notice. If you do not agree to the terms of this Agreement, you cannot use the Services. This Agreement continues from calendar month to calendar month (“Term”), unless earlier terminated as set forth herein, or unless a party provides the other party written or email notice of non-renewal at least thirty days in advance of termination.

3. SERVICE ORDER FORM TERM.

The term for each Service Order Form commences on the Service Commencement Date, defined below, and shall continue for the term defined in each Service Order Form. The “Service Commencement Date” is the date Data393 first generates an e-mail message to Customer that provides access codes and passwords for Customer’s use of the applicable Services on that Service Order Form. If any Services under a Service Order Form extend beyond the Agreement Term, the Agreement will remain in full force and effect until such time that all Service Order Forms have expired or been terminated and, in that case, “Term” shall include and be extended to mean the applicable Service Order Form terms.

4. SURRENDER OF THE SERVERS.

Upon expiration or earlier termination of this Agreement, Customer shall remove all of Customer’s Data from Data393’s servers at Customer’s expense. If Customer fails to remove its data within three days of the date of expiration or other termination, Data393 may delete the data and shall have no obligation to backup or restore the data for Customer.

5. SERVICE CHARGES, BILLING AND PAYMENT.

Customer shall pay Data393 in U.S. dollars for all charges for Services and Data 393 shall commence invoicing as of each Service Commencement Date. All Monthly Fees shall be due and payable by Customer in advance on the first day of each month, except for the first payment which shall be a pro rata portion of the Monthly Fee, calculated on a 30-day basis, due and payable from the Service Commencement Date (“Due Date”). Customer agrees to pay the Monthly Fee set forth in the Service Order Form for each item, together with all initial Setup Fees and any over-usage fees for bandwidth or managed services usage beyond the contracted Allotment.

If the Monthly Fee is not paid within fifteen days of the first day of the month: (i) the amount due and payable shall bear interest at the rate of 1.5% per month starting from the Due Date; and (ii) Data393 may suspend the Services, including access to the server or servers and to Customer’s data on all servers; provided however, that Data393 will first provide at least three days prior notice by email or fax to the contact person designated by Customer to allow Customer to issue payment promptly. If Customer does not issue payment within the three days notice, Data393 may suspend any or all Services until all amounts owed have been paid in full. To re-enable Service, Data393 reserves the right to charge a reconnection fee of $100 per applicable Service Order Form.

If Customer makes more than one late payment, Data393 has the right, upon written notice to Customer, to require a Security Deposit, as defined below, an increase in any existing Security Deposit, and/or other reasonable assurances to secure Customer’s payment obligations hereunder. If Customer reasonably and in good faith disputes any portion of an invoice based on a billing error, it may withhold the disputed amount, provided that Customer submits to Data393, within fifteen calendar days of the invoice date, a written statement setting forth in reasonable detail the basis for its dispute. If Data393 determines in good faith that there is no error, Customer agrees to immediately pay the disputed amount.

6. MODIFICATION OF SERVICE/PRICING.

All pricing and Services are as set forth in the Service Order Form and may not be changed without a written revision to the Service Order Form. Data393 will not be responsible if any changes in Services, the network or the facilities cause Customer’s hardware or software to become obsolete, require modification or alteration, or otherwise affect performance of such hardware or software. With thirty days advance written notice to Customer, Data393 may modify or suspend Customer’s Service as necessary to comply with any law or regulation as reasonably determined by Data393 (“Compliance Notice”). In the event of any such change to Service, Customer may terminate the applicable Service without liability to Data393 for any associated termination charges upon thirty days written notice to Data393 issued within sixty days of the date of the Compliance Notice. In the event that it becomes necessary to relocate Customer’s Data to other servers or equipment, Customer agrees to cooperate in good faith with Data393 to facilitate such relocation. Data393 agrees to be responsible for the reasonable costs and expenses incurred in connection with any such relocation, to the extent Customer reasonably cooperates with Data393, and will use commercially reasonable efforts to minimize and avoid any interruption to Customer’s Services.

7. TAXES.

All charges are exclusive of any applicable foreign, federal, state and local taxes, including without limitation, all use, sales, value-added, surcharges, excise, franchise, personal property, commercial, gross receipts, license, privilege or other similar taxes, levies, surcharges, duties, fees, or other tax- or regulatory-related surcharges imposed by governments related to the Services, whether charged to Data393 or Customer, including any and all fees and taxes which may be imposed by any Internet registration authority, for the registration and maintenance of Customer’s domain name(s) and/or Internet address(es) applicable to the delivery of and receipt or use of Services hereunder, except for taxes based upon Data393’s net income (collectively “Taxes”) now in force or enacted in the future, all of which Customer will be responsible for and shall pay in full. If during the course of any governmental audit/examination, it is determined that Data393 is subject to additional taxes or regulatory assessments as a result of the delivery of and receipt or use of the Services, then Customer shall reimburse Data393 for any taxes, penalties, and interest that may be assessed applicable to Customer’s Services.

8. SECURITY DEPOSIT.

As a condition of Data393’s obligation to perform under this Agreement, Data393 reserves the right to demand and, upon such demand, Customer shall pay to Data393 a security deposit in the amount, if any, set forth on the Deposit Receipt form provided to Customer as part of the credit application package (“Security Deposit"). If Customer defaults under this Agreement, Data393 may, without further notice to Customer and without prejudice to Data393’s other remedies, apply part or all of the Security Deposit toward the cure of Customer's Default. In such event, Customer shall, within five business days after written demand, pay Data393 an amount equal to the amount so applied to restore the Security Deposit to its original amount. Data393 may co-mingle the Security Deposit with its own funds. Customer shall not be entitled to receive interest on the Security Deposit. The Security Deposit repayment procedures are set forth on the Deposit Receipt form, and otherwise, any part of the Security Deposit not used by Data393 shall be returned to Customer within sixty days after this Agreement expires or is terminated, after applying the Security Deposit to any outstanding amounts due and payable to Data393. If Data393 assigns this Agreement, then Data393 shall be relieved of liability for the Security Deposit upon delivery of the Security Deposit to an authorized assignee.

9. CUSTOMER’S RIGHTS AND OBLIGATIONS

9.1 Restrictions on Use of Services. Customer may not solicit any Data393 customers in a Data Center. Customer shall not and shall not permit others, including its employees and agents, to reproduce, reverse-engineer, de-compile, disassemble, alter, translate, modify, adapt, market, resell, or sublease any Data393 Services, unless expressly permitted by this Agreement. Other than as specified herein, no license, title, or right is granted or transferred to Customer in or to any service marks, trademarks, copyrights, patents, trade secrets or other intellectual property rights of Data393 ("Proprietary Information"), and Customer shall not have any right to use any Proprietary Information, or any Data393 software or hardware.

9.2 Acceptable Use Policy. Customer shall comply with Data393’s acceptable usage policies, listed at http://www.data393.com/legal/aup.asp or at another location identified to Customer by Data393 from time to time, which are incorporated into this Agreement by this reference. Data393 may amend its acceptable use policies periodically provided that Customer is informed in advance of any such amendments and the amendments do not materially and adversely alter the provision of Services hereunder, except to the extent required by law. Customer shall not, and shall not suffer or permit its customers or end users to, knowingly engage in procedures or activity that could result in IP blacklisting by third parties. Data393 reserves the right to immediately take corrective action, including disconnection or discontinuance of any and all Services, or to terminate this SHA in the event of notice of possible violation by Customer of the Data393’s acceptable use policies and/or this paragraph. Customer’s Data will not violate or infringe the rights of others, including, without limitation, any patent, copyright, trademark, trade secret, privacy, publicity, or other personal or proprietary right. Customer’s Data will not violate any laws to which Customer or Data393 may be subject, constitutes a defamation or libel of Data393 or any third party and will not result in the obligation of Data393 to make payment of any third party licensing fees. “Customer’s Data” means the text, data, images, sounds, photographs, illustrations, graphics, programs, code and other materials transmitted or stored by Customer, Customer’s customers and/or persons under Customer’s control through any Service provided hereunder.

9.3 Security Procedures. Customer will follow all applicable Data393 security procedures (the version in effect as of the Effective Date is located at http://www.data393.com/legal/managed-hosting-security-guidelines.asp implemented at the Data Center. Customer shall ensure that Data393 (i) has current contact information at all times, and (ii) is notified reasonably in advance of any change to the contact information. Customer shall implement its own reasonable security procedures in connection with use of Services. Customer shall protect and maintain Customer’s Data and shall use commercially reasonable efforts to ensure that Customer’s Data does not damage Data393 or any other customer of Data393. Customer shall be responsible for any loss or damage to Customer’s data, the Services, or the loss of or damage to any other customer’s data or Data393’s data due to Customer’s failure to comply with this subsection.

9.4 Compliance with Law. Customer will comply with all applicable laws (including the Digital Millennium Copyright Act, as amended), and regulations and will not use the Services in any manner which is in violation of any law, code or governmental regulation. All Customer Equipment will be installed and used in compliance with all applicable laws, regulations and manufacturer’s specifications. Customer shall not maintain or permit any nuisances or violations of governmental laws, rules, regulations or ordinances with respect to a Data Center.   

9.5 Cooperation. Customer shall reasonably, timely, and in good faith cooperate with Data393 and Data393's designees and agents to facilitate Data393’s performance of Services and shall provide Data393 with reasonable access to the necessary information, including but not limited to, system or platform design, network architecture, IP addresses, hardware, and software specifications (“Customer Information”) to provide the Services described in this Agreement. It is essential to Data393's performance hereunder that Data393 have reasonable access to Customer Information. Customer shall (i) configure the Customer Equipment according to the technical specifications reasonably provided by Data393; and (ii) maintain any necessary licenses associated with any of Customer Equipment. Data393 assumes no responsibility to obtain from Customer’s licensees necessary licenses or consents to monitor or access Customer Equipment to perform the Services. If Customer modifies it’s Customer Information in a manner that necessitates a change to the Services, then Customer shall pay any reasonable time and materials that Data393 incurs to troubleshoot, modify, or make repairs necessary to adapt to the Customer modifications. Unless specified otherwise in a Service Order Form, Customer is responsible for purchasing and maintaining all manufacturer warranties, updates, patches, upgrades, and service plans reasonably required to ensure that the Customer Equipment and Customer Information remains in working order through the Term and Data393 shall not be responsible for any delay or failure by Customer to purchase or maintain such coverage.

10. USE OF NAME AND MARKS.

Neither party will, without the prior written consent of the other party, use any trademark, service mark, brand name, copyright, patent, or any other intellectual property of the other Party or its respective affiliates. Data393’s and Customer’s name and trademarks are proprietary and nothing herein constitutes a license authorizing its use by the other party.

11. DISCLAIMER OF WARRANTIES.

11.1 Warranties. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, ALL SERVICES ARE PROVIDED “AS IS.” Data393 MAKES NO WARRANTIES OF ANY KIND, AND HEREBY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, OR NON-INFRINGEMENT OF THE SERVICES OR ANY EQUIPMENT Data393 PROVIDES. NEITHER Data393, ITS EMPLOYEES, AFFILIATES, AGENTS, THIRD-PARTY PROVIDERS, MERCHANTS, LICENSORS OR THE LIKE, WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO ANY OF THEM 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 OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE SERVICES. CUSTOMER AGREES THAT IT IS SOLELY RESPONSIBLE FOR ASSESSING ITS EQUIPMENT AND TRANSMISSION NETWORK NEEDS AND THE RESULTS TO BE OBTAINED THEREFROM AND THAT Data393 EXERCISES NO CONTROL WHATSOEVER OVER THE MERCHANDISE, INFORMATION AND SERVICES OFFERED OR ACCESSIBLE ON THE INTERNET. WITHOUT LIMITING THE FOREGOING, Data393 does not warrant and hereby disclaims that the services will provide protection from (a) viruses, trojan horses, worms, time bombs, cancelbots, or other harmful or deleterious programming routines; (b) data loss; (c) unauthorized, unknown, or unforeseeable security breaches, accesses, or attacks into or affecting customer equipment or systems; and DOES NOT PROVIDE any form of real-time detection of any or all of the foregoing. Neither party shall make any representations or warranties on the other party’s behalf. Data393 is not responsible for any defects or damages to Customer Equipment or Services resulting from (x) Customer’s, Customer’s agents’, or Customer's employees’ mishandling, abuse, misuse, or accident; (y) force majeure; or (z) Customer’s use or provisioning of equipment electrically or mechanically incompatible with Services or of inferior quality.

11.2 No Control over Content. Customer acknowledges and agrees that Data393 exercises no control over, and accepts no responsibility for, the content of the information passing through Data393’s network or the Internet. Customer assumes responsibility for Customer’s use of the Services or software provided by Data393, if any, and the Internet. Customer understands and agrees that the Internet contains materials some of which are socially inappropriate or may be offensive; and is accessible by persons who may attempt to breach the security of Data393 and/or Customer’s network(s). Data393 has no control over and expressly disclaims any liability or responsibility whatsoever for such materials or actions. Customer and Customer’s users and end users access the Services at their own risk. Data393 is not liable for the content of any data transferred either to or from Customer or stored by Customer or any of Customer’s customers via the Services provided by Data393.

11.3 Disclaimer of Third Party Actions and Control. Data393 represents that it maintains agreements with multiple carriers for redundant Internet connectivity at all times during the Term and such connections are consistent with the uptime and bandwidth requirements of the Services. Data393 does not and cannot control connectivity, or the flow of data to or from Data393's equipment and facilities or other portions of the Internet. Such connectivity depends in large part on the performance of Internet or access services provided or controlled by third parties. At times, actions or inactions caused by these or other third parties can produce situations in which Customer’s connections to the Internet (or portions thereof) may be impaired, interrupted or disrupted. Although Data393 will use commercially reasonable efforts to remedy and avoid such events, Data393 cannot guarantee that they will not occur. Accordingly, Data393 shall not be liable for such events.

11.4 Monitoring. Data393 will install and operate such monitoring and management systems as it deems necessary to monitor the Data Center. Unless otherwise agreed to by both parties and specified on the Service Order Form, Data393 shall have no duty to monitor, maintain, or care for Customer’s Equipment.

12. INDEMNIFICATION.

Each party agrees to indemnify, save harmless, and defend the other party and its employees, officers, directors and agents (“Indemnified Party”) from any third party claims, damages, losses, liabilities and expenses (including reasonable attorneys’ fees) arising out of or associated with Customer’s use of the Services alleging: (a) the gross negligence or willful misconduct of the Indemnified Party; (b) violation of Data393’s acceptable use policy, Rules and Regulations, or the law; or (c) arising from or connected with any claims of ownership or superior rights to Customer’s data, equipment, or business.

13. LIMITATION OF LIABILITY.

13.1 Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST REVENUE, LOST PROFITS, BUSINESS INTERRUPTION, REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF DATA, OR INTERRUPTION OR LOSS OF USE OF SERVICE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING UNDER ANY THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE. IN THE EVENT OF Data393’S FAILURE TO MEET A SERVICE LEVEL AGREEMENT, CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES ARE AS SET FORTH IN THE DATA393 SLAs.

13.2 Maximum Liability. Data393'S MAXIMUM AGGREGATE LIABILITY FOR ANY DAMAGES, LOSSES AND CAUSES OF ACTIONS WHETHER IN CONTRACT OR TORT (INCLUDING THE NEGLIGENCE OF A PARTY AND/OR ITS EMPLOYEES OR OTHERWISE) RELATED TO OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES WILL BE LIMITED TO A TOTAL AMOUNT NO GREATER THAN THE MONTHLY SERVICE CHARGE FOR THE AFFECTED SERVICE IN THE MONTH OF THE EVENT OR EVENTS GIVING RISE TO SUCH LIABILITY.

14. DEFAULT AND TERMINATION.

14.1 Default by Data393. The occurrence of any of the following will be a “Default” by Data393: (i) Data393 fails to perform a material obligation under this Agreement after receiving thirty days advance notice from Customer of such failure; or (ii) Data393’s insolvency or liquidation as a result of which Data393 ceases to do business; or (iii) the material breach of any representation or warranty made by Data393 in this Agreement, except to the extent such breach is susceptible to cure, in which case there shall be no Default unless such breach is not cured within thirty days after receiving written notice from Customer of such breach. A violation of any SLA expressly is not a breach of a representation or warranty or a Default hereunder.

14.2    Default by Customer. The occurrence of any of the following will be a “Default” by Customer: (i) Customer fails to pay, when due, any fees or charges owing to Data393 under this Agreement, provided that the first such nonpayment in any calendar year shall not be a Default unless Customer fails to pay such amount within five business days after notice from Data393 of such nonpayment (a “Payment Default”); or (ii) Customer fails to pay (or repay) timely any or all of a Security Deposit and does not cure such failure within five business days after written notice thereof (“Security Default”); (iii) the material breach of any representation or warranty made by Customer in this Agreement, except to the extent such breach is susceptible to cure, in which case there shall be no Default unless such breach is not cured by Customer within thirty days after receiving notice from Data393 of such breach; (iv) Customer fails to comply with any material obligations under this Agreement (other than payment or security deposit obligations) after receiving thirty days advance written notice from Data393 of such failure; or (v) Customer's insolvency or liquidation as a result of which Customer ceases to do business.

14.3 Remedies for Default. If a party commits a Default, the non-defaulting party will be entitled, at its election to exercise any one or more of the following remedies, as applicable, then or at any time thereafter: (i) to exercise any remedy for such Default set forth elsewhere in this Agreement; (ii) to pursue any remedy available at law or in equity, or (iii) to terminate this Agreement. In addition to and without waiving any other remedies for Default available to Data393 hereunder, Data393 may, without notice beyond the initial notice required for the Default, (1) suspend or discontinue Services or performance under this Agreement; (2) collect Liquidated Damages; (3) treat as abandoned, dispose of, or retain and use, free of any rights or claims thereto from Customer or anyone claiming by, through or under Customer, any of all of the Customer Equipment if Customer fails to remove the same from the Data Center after Customer has been notified of Default and failed to cure the Default, and then only after twenty business days prior notice to Customer.

14.4 Liquidated Damages. If Customer terminates this Agreement without cause prior to the end of the Term, or Data393 terminates this Agreement because of a Default by Customer, Customer agrees to pay Data393 a termination charge equal to 100% of the monthly recurring charges multiplied by the number of months remaining in the first year of the Term and/or 50% of Customer’s monthly recurring charges multiplied by the number of months in the remainder of the Term after the first year (“Liquidated Damages”). The parties specifically agree that the damages which Data393 will incur arising from any Default or early termination of this contract by Customer are based upon future facts and conditions which are difficult for the parties to presently predict, anticipate, ascertain or calculate. The parties further agree that such liquidated damages, as determined herein, are based upon the best efforts of the parties to estimate the nature and amount of Data393’s actual damages, are not a penalty, and are intended to place Data393 in the same position it would have achieved, had the contract been fully performed by the parties according to the original terms. Upon the effective date of expiration or termination of this Agreement; (a) Data393 will immediately cease providing the Services and (b) any and all payment obligations of Customer under this Agreement will become due immediately.

15. CONFIDENTIAL INFORMATION.

15.1 Definition; Authorized Use. Each party may have access to certain non-public information of the other party. All such information, if in writing, shall be specifically and obviously marked as "confidential" by the disclosing party at the time of disclosure, or if disclosed orally, shall be orally designated as confidential and thereafter identified as confidential by written notice to the receiving party within a reasonable time ("Confidential Information"). The pricing of Services in this Agreement, and each party's method of providing its respective services are hereby deemed Confidential Information. Neither party will use for its own account or the account of any third party, nor disclose to any third party (except as required by law or as reasonably necessary to the receiving party's attorneys, accountants and other advisors who are obligated to maintain the confidentiality of such information), any of the other party's Confidential Information, except as required to under this Agreement. The disclosing party retains all right, title and interest in all Confidential Information it discloses under this Agreement and all improvements and modifications made thereto. Each party will use reasonable care, at least equivalent to the care used for its own similar Confidential Information, to protect the confidentiality of the disclosing party's Confidential Information. Each party’s obligation under this Section will survive for a period of twelve months following the expiration or termination of this Agreement.

15.2 Exceptions. Confidential Information shall not include information that (i) is in or enters the public domain without breach of this Agreement and through no fault of the receiving party; (ii) the receiving party was legally in possession of prior to receiving it; (iii) the receiving party can demonstrate was developed by it independently and without use of or reference to the disclosing party’s Confidential Information; or (iv) the receiving party receives from a third party without restriction on disclosure. If a party is required to disclose Confidential Information by law, court order, or government agency, such disclosure shall not be deemed a breach of this Agreement.

15.3 Remedy. Any unauthorized copying, transfer, or use of any Confidential Information of the other party shall cause irreparable injury to the disclosing party that cannot be adequately compensated by monetary damages and the disclosing party shall be entitled to seek equitable relief, including injunctive relief, with bond waived, against the receiving party as a remedy for any material breach of this Section. The disclosing party may in addition to equitable relief, pursue any and all legal and contractual remedies available to the disclosing party.

16. INSURANCE.

16.1 Minimum Levels of Insurance. During the term of this Agreement, both parties will keep in full force and effect insurance policies covering: (i) commercial general liability insurance in an amount not less than one million dollars per occurrence; (ii) workers’ compensation insurance in an amount not less than that required by applicable law; and (iii) property insurance covering each party’s own property and equipment for the perils customarily insured for full replacement cost at the time of the loss. Within twenty business days after written request, a party will provide to the other evidence of the foregoing insurance. Neither party has any obligation to insure the equipment or property of the other. The insurance policies required in this Agreement will be issued by financially secure insurance companies authorized to issue such insurance in the state in which the issuing party is conducting business or receiving Services.

16.2 Waiver of Subrogation. Neither party, nor its officers, directors, shareholders, employees, agents or invitees, will be liable to the other party or to any insurance company insuring the other party (by way of subrogation or otherwise) for any loss or damage to data or property within a Data Center, or for loss of business revenue or extra expense arising out of or related to its data or property within a Data Center.

17. SERVICE LEVEL AGREEMENT.

Data393 is a fully redundant, multi-homed network and we strive for 99.999% uptime. The Service Level Agreement (“SLA”) located at http://www.data393.com/legal/managed-hosting-sla.asp constitutes Customer’s sole and exclusive remedy for Data393’s provision of or failure to provide Services to Customer, except that Data393 shall have no obligation to compensate Customer under any SLA while Customer is in Default or not current in its payment obligations under this Agreement. Data393 may amend the SLA periodically provided that (i) Customer is informed in advance; and (ii) the amendment does not materially and adversely alter the provision of Services.

18. MISCELLANEOUS.

18.1    Notices. Except where other means of communication are expressly provided in this Agreement, all notices under this Agreement will be in writing, signed by the party giving the same, and will be deemed properly given and received (i) on the next business day after deposit for pre-paid overnight delivery by an overnight courier service or (ii) three business days after mailing, by pre-paid registered or certified mail, return receipt requested. All such notices will be addressed to the addresses listed in this Agreement to the attention of the law department. Either party may change its address for notices hereunder by written notice to the other party.

18.2 Force Majeure. Each party’s failure to perform its obligations hereunder, except any obligation to pay money due or for Services rendered, shall be excused to the extent and for the period such performance is prevented by any act or condition beyond the reasonable control of such party including without limitation, fire, flood, earthquake, acts of nature, explosion, war, acts of terrorism, labor dispute, or any governmental law, order, regulation or ordinance (“Force Majeure Event”), provided, however, that if a party suffering a Force Majeure Event is unable to cure that event within thirty days, the other party may terminate this Agreement.

18.3 Amendment. This Agreement may not be amended, modified, or supplemented except by a written amendment executed by an authorized representative of Customer and Data393.

18.4    No Waiver. No failure to exercise and no delay in exercising any right, remedy, or power hereunder will operate as a waiver thereof.

18.5 Assignment. This Agreement will be binding upon and inure to the benefit of Customer, Data393 and its respective successors, and authorized assignees. Customer may not assign this Agreement without the prior written consent of Data393, which consent shall not be unreasonably withheld.

18.6    No Beneficiaries. The representations, warranties, covenants and agreements of the parties set forth in this Agreement are not intended for, nor shall they be for the benefit of or enforceable by, any person not a party hereto, including without limitation any Customer’s customer.

18.7 Press Releases. Neither party may issue any publicity or press release regarding this Agreement or the Services provided hereunder without the prior written consent of the other party.

17.8    Severability. If any provision of this SHA is held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this SHA will remain in full force and effect.

18.9 Attorney and Other Fees. In the event an attorney is retained by Data393 to enforce the terms of this Agreement or to collect any monies due hereunder or to collect money damages for breach hereof, the party retaining the attorney shall be entitled to recover, in addition to any other remedy, reimbursement for reasonable attorney's fees, court costs, costs of investigation and other related expenses incurred in connection therewith.

18.10 Independent Contractors. This Agreement does not establish any relationship of partnership, joint venture, employment, franchise or agency between Data393 and Customer.

18.11 Export Control. All Services and technical data delivered under this Agreement are subject to U.S. export control laws, including the U.S. Bureau of Export Administration regulations, as amended, and Customer hereby agrees to comply strictly with all such laws and regulations.

18.12 No Power to Bind. Neither Data393 nor Customer will have the power to bind the other, make representations or warranties on the other’s behalf, or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein.

18.13 Attachments. All attachments to this SHA, including without limitation the Rules and Regulations, acceptable use policies, SLAs, Service descriptions, Service Order Forms, amendments, statements of work, and addendum (each an “Attachment”) are incorporated and made a part hereof as if fully set forth herein. To the extent that the terms and conditions of any Attachment are inconsistent with the terms and conditions of this SHA, this SHA will control.

18.14 Governing Law. This Agreement will be governed by, enforced, and interpreted by the laws of the state of Colorado, without regard to its conflict or choice of law principles. Data393 and Customer hereby consent and submit to the personal jurisdiction of the state and federal courts in Colorado for any actions arising from this Agreement. Any action arising out of this SHA shall be filed in the courts of Douglas County, Colorado.

18.15 Integration. This SHA, and any other document or agreements specifically identified in this SHA, contains the full agreement of the parties and supersedes any and all previous representations, understandings or agreements whether oral or written.

18.16 Survival. The respective rights and obligations of Data393 and Customer, which by their nature would continue beyond the termination or expiration of this Agreement, including without limitation, the rights and obligations regarding ownership, confidentiality, limitation of liability, and indemnification, shall survive the termination or expiration of this Agreement.