CheaperWebHost.com Web Hosting and E-mail
Services Agreement

Last Updated August 23, 2004
(Revision History - for reference only)

Read this Agreement carefully before using any CheaperWebHost.com service. By ordering our Web Hosting and/or E-mail services you agree to the provisions of this Agreement. Questions can be sent to info@cheaperwebhost.com.

1. Agreement
   
   
   1. This document constitutes a legal and binding agreement (the "Agreement") between you, your business or organization (if you are entering into this Agreement on behalf of a business or organization), collectively referred to herein as "you" and "your" (and appropriate formatives), and Kudzu Corner, Inc. ("we," "us," "our"), a Georgia, USA, Corporation and the owner and operator of the CheaperWebHost.com web site.
      
      
   2. This Agreement sets forth the terms and conditions of your use of the Web Hosting and/or E-Mail services offered by the CheaperWebHost.com web site (collectively, the "Services"). By using the Services, you agree to be bound by all of the provisions contained in this Agreement, including future revisions, and to use the Services in compliance with the current Acceptable Use Policy ("AUP"). You agree that any personally identifiable information provided by you shall be used in accordance with our Privacy Policy. We reserve the right to modify this Agreement, the Acceptable Use Policy, and the Privacy Policy at any time in our sole discretion. Your use of the Services after such modified Agreement, Acceptable Use Policy, and/or Privacy Policy is posted to the CheaperWebHost.com web site constitutes your acceptance of the modification(s). You agree that you will check this Agreement, the Acceptable Use Policy, the Privacy Policy, and any other Terms and Conditions posted on the CheaperWebHost.com web site periodically and that if at any time you no longer agree with any of the provisions that you will stop using the Services and that you will terminate your account in accordance with Section 7 (if applicable) or Section 8 of this Agreement.
      
      
   3. The Acceptable Use Policy and Privacy Policy are hereby incorporated into this Agreement by reference.
      
      The most recent version of this Agreement can be found at http://www.cheaperwebhost.com/agreement.htm.
      The most recent version of the Acceptable Use Policy can be found at http://www.cheaperwebhost.com/aup.htm.
      The most recent version of the Privacy Policy can be found at http://www.cheaperwebhost.com/privacy.htm.
      
      
   4. Only individuals 18 years of age and older who can form legally binding contracts under applicable law may enter into this Agreement.
      
      
   5. If you are entering into this Agreement on behalf of a company or organization, you represent and warrant that you are authorized by said business or organization to enter into this Agreement on their behalf.
      
      
2. Contact Information
   
   
   1. You agree to provide us with accurate and current contact information for you (legal name, address, telephone number, e-mail address, etc.). You agree to notify us of any changes in such contact information within ten (10) Business Days of the effective date of such change by sending an e-mail to sales@cheaperwebhost.com. Be sure to include the type of service, your account name, and an indication of the information you are changing.
      
      
   2. You agree that if you change your address of record to one that is in a different country then this Agreement may be subject to termination.
      
      
   3. You agree that we may call you at the phone number you provide to confirm your contact information and your application to use the Services, and that we may delay activation of your account until we obtain such confirmation.
      
      
   4. You acknowledge that e-mail will be the primary means of communication between yourself and us. You acknowledge that it is your responsibility to maintain a current e-mail address and physical mailing address in your contact information. You agree that your failure to respond to a communication from us may result in suspension or cancellation of your account without any refund of any prepaid fees.
      
      
3. License Grant
   
   
   1. Subject to the provisions contained in this Agreement and payment of applicable fees, we hereby grant to you a non-exclusive, nontransferable license to use the Services for your own use and: (i) if you entered this Agreement as an individual, use by your family members residing in the same household with you, or (ii) if you entered this Agreement on behalf of a business or organization, use by the employees, agents, contractors, and other users of said business or organization. You agree that you will not allow any unauthorized third party to access your account.
      
      
   2. We will provide you a user name, password, and other information regarding your account for the Services. You agree to keep your password confidential to prevent unauthorized access to the Services through your account by persons other than those listed in the previous paragraph. You agree to notify us immediately upon discovering any unauthorized use of your account.
      
      
   3. You agree to make anyone using your account aware of the Acceptable Use Policy, Privacy Policy, and any other Terms and Conditions related to the Services. You agree that you are ultimately responsible for any use of your account by any user.
      
      
4. The Services
   
   
   1. The Services consist of the Web Hosting and/or E-Mail package with the specific configuration that you selected, or are going to select, through the CheaperWebHost.com web site. You acknowledge and understand that important service limitations (including storage space limitations, bandwidth limitations, and other capacity limitations), pricing (including pricing for optional Services), the "term" (duration, period, length of time) of the Service, payment terms, and other conditions relating to the Services are conveyed through the CheaperWebHost.com web site and are hereby incorporated into this Agreement.
      
      
   2. The Services are provided through an infrastructure which is shared by multiple users of the Services. Your use of the Services may be throttled or suspended indefinitely if your use of the Services degrades the ability to provide the Services to other users of the Services.
      
      
5. Third Party Providers
   
   You must provide any equipment and/or software that may be required for you to access and use the Services. As such, you may be required to subscribe to other services, including, but not limited to, an Internet Service Provider service, and/or you may be required to purchase additional equipment and/or software. In addition, you acknowledge that you may have to agree to and execute agreements with third party providers who may charge additional fees and charges that would be in addition to the fees you are charged for the Services under this Agreement.
   
   
6. Billing and Payments
   
   
   1. You agree that the Services will be provided for the term you selected through the CheaperWebHost.com web site. All accounts are set up on a pre-pay basis. No refunds will be given for canceling prior to the end of the term you selected, except as provided for an initial trial period as described elsewhere in this Agreement.
      
      
   2. All pricing information on the CheaperWebHost.com web site and in this Agreement is in United States Dollars (US$). All payments must be made in US Funds drawn on a US bank.
      
      
   3. Pricing and features are guaranteed for the term of pre-payment. Otherwise, we reserve the right to change prices and/or features at any time unless other terms have been agreed upon.
      
      
   4. Setup fees may be charged for new accounts and major account changes. Any such fees are non-refundable.
      
      
   5. You are responsible for any and all applicable sales, use, revenue, excise, or other taxes (other than taxes on our net income) imposed by any taxing authority relating to the Services. All such taxes will be added to our invoices and will appear as separate charges.
      
      
   6. You may switch to a different term length, for example from monthly to annual billing, to begin after the end of your current term. There is no fee for changing your term length, but the amount you pay for the Services may be different based on the new term length you select. You may not switch to a different term length during your current term.
      
      
   7. You may upgrade your plan or add features at any time. You will be responsible for any additional costs associated with the upgraded plan. The additional costs will be determined by taking a pro-rata share of the new plan costs as compared to a pro-rata share of the former plan costs. There may also be setup or other fees associated with the upgrade. Upgrading your plan will not change the end date of your current term.
      
      
   8. You may not downgrade your plan or remove features during your current term. You may only downgrade your plan or remove features to take effect with a subsequent term after the end of your current term.
      
      
   9. If you wish to make any changes to your account, for example, changing to a different term length, upgrading your plan, downgrading your plan, or make any other changes, please send an e-mail to sales@cheaperwebhost.com indicating your request. You must include the type of service, your e-mail address, account name, and if related to web hosting, the domain. We will respond to you with an e-mail confirming your request and will let you know if there will be any setup or other fees associated with your request. If you are on a recurring billing plan, then for requests that would take effect after the end of your current term, or at the beginning of your next term, in order to ensure that automatic billing of your account is changed, be sure to send your request at least one week prior to your next billing date and be sure that you get the confirmation message from us.
      
      
   10. All changes made to your account are considered valid unless disputed in writing within twenty-one (21) days of the first billing date after which such changes took effect. Adjustments will not be made for charges that are more than 21 days old.
       
       
   11. You are hereby informed that we use StormPay as our payment processor for orders placed via our website. StormPay accepts various forms of payment, including credit cards and e-checks. If you use StormPay to pay for the Services, the charge for the Services will appear under the name of "StormPay Inc. Online Sale" on your credit card, bank, or other relevant statement(s) depending on the particular form of payment you use. You agree that prior to contacting your credit card company, bank, or other involved institution in relation to any such charge(s) that you will first contact us to verify the charge(s) and the manner of billing.
       
       
   12. You agree that any chargeback of a charge related to the Services, for whatever reason, is a material breach of this Agreement and is grounds for termination. Your account will incur a $50.00 fee for each chargeback received against it.
       
       
   13. If you are on a recurring automatic billing plan, then:
       
       
       1. Unless you terminate the Services in accordance with Section 7 (if applicable) or Section 8 of this Agreement prior to the end of your then current Services term, you agree that this Agreement and the Services may be automatically renewed for another term of equal duration to the immediately preceding term and that the resulting fees shall be charged to your account and you will be responsible for such charges, and
          
          
       2. You agree to hereby waive any requirement which might otherwise be imposed by law which would require that we obtain your affirmative consent for ongoing billings and that your continuing consent to be billed for such renewal(s) may be presumed until such time as you terminate the Services in accordance with Section 7 (if applicable) or Section 8 of this Agreement, and
          
          
       3. You agree that attempts to terminate the Services other than in accordance with Section 7 (if applicable) or Section 8 of this Agreement are not reliable means of communication and that such a termination attempt shall not be binding until accepted and acknowledged by us, and
          
          
       4. You acknowledge that Monthly plans are subject to automatic recurring billing every 30 days and Annual/Yearly plans are subject to automatic recurring billing every 365 days.
          
          
   14. If you are not on a recurring automatic billing plan, then your account will be suspended or disabled at the end of your term unless we receive payment from you for a subsequent term prior to the end of your term.
       
       
   15. You agree that it is your obligation to keep the billing information (such as credit card number, expiration date, billing name and address, etc.) associated with your account current and that we shall not be obligated to contact you to update such information in the event that charges are denied.
       
       
   16. If any charges against your credit card, bank account, or other agreed method of payment are denied, your account will be suspended and we will send you an e-mail notification. Any account not brought current within one week of such notification is subject to complete deactivation.
       
       
   17. Late payment fee is $20.00. Returned check fee is $35.00. Any account that has been suspended or deactivated may incur a $25.00 reconnection fee, in addition to requiring full payment of any outstanding balance due, prior to the account being reactivated.
       
       
   18. We are not responsible for any charges or expenses (e.g., for overdrawn accounts, exceeding credit card limits, etc.) resulting from charges billed by us in accordance with this Agreement.
       
       
   19. You are responsible for all money you owe us under this Agreement from the time you enter into this Agreement until the time you notify us in accordance with Section 7 (if applicable) or Section 8 of this Agreement of your intent to cancel the Services. Your notification to us of your intent to cancel the Services does not relieve you of any obligation to pay fees and costs accrued before you sent us such notification, nor for any other amounts you owe us under this Agreement.
       
       
   20. All provisions of this Agreement shall be in full force and effect during all original and renewal periods hereunder.
       
       
7. Trial Period and Limited 21-Day Money Back Guarantee
   
   
   1. We offer a twenty-one (21) day trial period and money back guarantee on all Web Hosting and E-Mail packages. If you are not completely satisfied with the Services, you may cancel within 21 days from the date your account was first activated. This offer is valid for only the first term of the Services that you order from us or, if you are ordering on behalf of a business or organization, the first term of the Services that anyone orders on behalf of your business or organization; it is not valid for subsequent terms you order, whether or not the subsequent terms are contiguous with the first term.
      
      
   2. You can cancel this Agreement pursuant to this Section during the initial twenty-one (21) day trial period by sending an e-mail to sales@cheaperwebhost.com indicating your request to cancel. You must include the type of service you are canceling, your e-mail address, account name, and if canceling web hosting, the domain on which you want to cancel. We will respond to you with an e-mail confirming your cancel request. Your cancellation request is not considered accepted until you receive the confirmation e-mail from us. It is your responsibility to ensure that you receive the confirmation e-mail from us. If you do not receive the e-mail confirming your cancellation request within two (2) Business Days of your sending us the request, or if it is close to the end of your twenty-one (21) day trial period when you decide to cancel, then please call us at (770)409-7058 with your cancellation request. Please note that we accept and process cancellation requests only between 9 AM and 5 PM Eastern Time on Business Days and this must be considered if you want to cancel during your trial period. If your twenty-one (21) day trial period ends on a Saturday or Sunday, then we must receive and accept your cancellation request pursuant to this Section prior to 5 PM Eastern Time on the previous Friday.
      
      
   3. In the event you cancel your Services account during the trial period pursuant to this Section, you will receive a full refund of any amounts paid under this Agreement, except for any setup or chargeback fees, which are not refundable. After the initial twenty-one (21) day trial period, the Services shall be deemed accepted for all purposes and no refund will be issued.
      
      
8. Termination or Cancellation of Service
   
   
   1. This Agreement is effective until terminated. Upon termination of this Agreement, your rights to use the Services shall immediately cease.
      
      
   2. We may terminate this Agreement immediately if you or anyone using your account violates any provisions of this Agreement or the Acceptable Use Policy, in which case your account may be deactivated with or without notice and without refund of any prepaid fees.
      
      
   3. If you wish to cancel your Services account, please send an e-mail to sales@cheaperwebhost.com indicating your request to cancel. You must include the type of service you are canceling, your e-mail address, account name, and if canceling web hosting, the domain on which you want to cancel. We will respond to you with an e-mail confirming your cancel request. If you are on a recurring billing plan, then in order to ensure that automatic billing of your account is discontinued, be sure to send your cancel request at least one week prior to your next billing date. Your cancellation request is not considered accepted until you receive the confirmation e-mail from us. It is your responsibility to ensure that you receive the confirmation e-mail from us. If you do not receive the e-mail confirming your cancellation request within two (2) Business Days of your sending us the request, either send the e-mail to us again or call us at (770)409-7058. Please note that we accept and process cancellation requests only between 9 AM and 5 PM Eastern Time on Business Days and this must be considered if you want to cancel your account.
      
      
   4. No refunds will be given for canceling prior to the end of the term you selected, except as provided for initial trial periods as described elsewhere in this Agreement.
      
      
   5. Termination of this Agreement, for any cause or reason whatsoever, will not relieve you of any obligation to pay fees and costs accrued before the termination date nor for any other amounts you owe us under this Agreement.
      
      
   6. Termination of this Agreement and our retention of prepaid fees and charges shall be in addition to, and not be in lieu of, any other legal or equitable rights or remedies to which we may be entitled.
      
      
   7. We may elect to terminate this Agreement without cause and discontinue the Services upon 30 days notice, whereupon a pro-rata share of any prepaid fee for an unused portion of the service term shall be refunded to you within a reasonable period of time.
      
      
   8. You acknowledge that we are under no obligation to return any data to you upon termination of this Agreement. However, we may permit you reasonable access for forty-eight (48) hours after termination of this Agreement to download or otherwise copy any of your information and data residing on the Services prior to our removing such information and data. After any such forty-eight (48) hour period, or upon termination of this Agreement if no such forty-eight (48) hour period is granted, you shall have no right to copy or download any such data or information and, in such event, all such information and data, including all copyrighted or copyrightable material therein, shall then become the property of Kudzu Corner, Inc.
      
      
   9. Upon termination of this Agreement, regardless of the reason for the termination, we shall in no event be liable for any loss, loss of data, or other commercial or non-commercial damage, including, but not limited to, special, incidental, consequential, or any other damages whatsoever which result from the termination of the Services.
      
      
   10. In cases where your account has been canceled and you request reactivation, we may, at our option, reactivate the same account, only if the account was canceled less than sixty (60) days prior to your reactivation request. After sixty (60) days, you will be required to set up a new account.
       
       
   11. Sections 3, 6, 7, 8, 10, 11, 14, 18, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 40, 41, 42, 43, 44, 45, and 46 of this Agreement shall survive termination of this Agreement for any reason.
       
       
9. Business Days
   
   For purposes of this Agreement, "Business Days" are based on our local time; "Business Days" are 9 AM to 5 PM Monday through Friday except for holidays as described in this Section. We are located in the Eastern Time Zone of the United States of America and observe Daylight Savings Time (presently from the first Sunday of April until the last Sunday of October) and all major US holidays, including: New Year's Day (January 1), Memorial Day (last Monday of May), Independence Day (July 4), Labor Day (first Monday of September), Thanksgiving Day (fourth Thursday of November), the day after Thanksgiving Day, and Christmas Day (December 25). For New Year's Day, Independence Day, and Christmas Day, if the date falls on a Saturday, the holiday is observed on Friday, the day before; if the date falls on a Sunday, the holiday is observed on Monday, the day after.
   
   
10. Storage Space
    
    Storage space is generally limited to the amount you purchased and for which we bill you, and you agree to not use storage space in excess of that amount. If you use storage space in excess of such amount, we may, without limiting our other rights or remedies, assess you with additional fees and you agree to pay such additional fees.
    
    
11. Bandwidth
    
    Actual bandwidth usage in any month is generally limited to the amount you purchased and for which we bill you, and you agree to not use bandwidth in excess of that amount. If you use bandwidth in any month in excess of such amount, we may, without limiting our other rights or remedies, assess you with additional fees and you agree to pay such additional fees.
    
    
12. Domain Name for Web Hosting
    
    
    1. If you are using the Web Hosting Services, you will provide us with a registered domain name (the "Domain Name") for your web site. You represent and warrant that you are authorized to use the Domain Name for your web site.
       
       
    2. You are responsible for maintaining the registration and managing the configuration of your Domain Name. We will provide you with the necessary information, such as DNS Server assignments, to direct your Domain Name to your web site.
       
       
13. You acknowledge that use of the Services requires a certain level of knowledge in the use of Internet languages, protocols, and software. The level of knowledge varies depending on the anticipated use of the Services. If you are using the Web Hosting Services, the level of knowledge varies based on the anticipated use and desired content of your web site (the "Web Site"); you must have the necessary knowledge to create and maintain a web site. We do not provide any such knowledge or support outside of the Services.
    
    
14. You are responsible for the security of any customer financial data, including, but not limited to, customer credit card numbers, and related customer information you may access or obtain as a result of using the Services. You will keep all such information confidential and will use at least the same degree of care and security as you would use with your own confidential information.
    
    
15. Customer Responsibilities for Web Hosting
    
    If you are using the Web Hosting Services:
    
    
    1. You will be fully responsible for developing your Web Site, uploading all data and information (the "Content") to your Web Site, supplementing, modifying, and updating your Web Site, and the ongoing operation and maintenance of your Web Site.
       
       
    2. You agree that you are responsible for the quality, performance, and all other aspects of your Content, your Web Site, and any goods or services you provide through your Web Site or use of the Services.
       
       
    3. You assume full responsibility for providing your users with any required disclosure or explanation of the various features of your Web Site and any goods or services described therein, as well as any rules, terms, policies, or conditions of use.
       
       
    4. You are also responsible for ensuring that your Content and all aspects of your Web Site are compatible with the hardware and software used to provide the Services, as the same may be changed from time to time. We shall not be responsible for any damages to your Content, your Web Site, or other damages or any malfunctions or service interruptions caused by any failure of your Content or any aspect of your Web Site to be compatible with the hardware and software used to provide the Services.
       
       
16. CGI Scripts
    
    Each Web Hosting account comes with its own cgi-bin. You are free to use any cgi scripts you wish, provided they do not violate the provisions of the Acceptable Use Policy. However, any cgi script deemed to be adversely affecting the server performance or the network integrity may be disabled without prior notice.
    
    
17. Backups
    
    You acknowledge that it is your responsibility to download, make copies of, and/or back up all of your data residing on the servers and other equipment which provide the Services and to do so within the bandwidth limitations of the Services. You acknowledge that any loss or corruption of data which occurs due to an interruption to the Services, regardless of the cause of the interruption, shall not be our responsibility and that you may, following an interruption in the Services, be required to upload the data to the servers and other equipment which provide the Services.
    
    
18. You hereby represent and warrant and agree that during the term of this Agreement you will ensure that:
    
    
    1. You are the owner or valid licensee of your data and information (the "Content") and each element thereof, and you have secured all necessary licenses, consents, permissions, waivers, and releases for the use of the Content and each element thereof, including without limitation, all trademarks, logos, names, and likenesses contained therein, without any obligation by us to pay any fees, residuals, guild payments, or other compensation of any kind to any person or entity; and
       
       
    2. Your use, publication, and display of your Content will not infringe any copyright, patent, trademark, trade secret, or other proprietary or intellectual property right of any person or entity, or constitute a defamation, invasion of privacy or violation of any right of publicity or any common law right or any "moral right" or similar right however denominated; and
       
       
    3. If you are using a domain name in connection with the Services, your use of said domain name does not infringe the legal rights of any third party or entity; and
       
       
    4. You will comply with all applicable laws, rules, and regulations regarding your Content and, if applicable, your Web Site; and
       
       
    5. You have used your best efforts to ensure that your Content is and will at all times remain free of all computer viruses, worms, Trojan horses, and other malicious code.
       
       
19. IP Addresses
    
    You may be assigned and allowed the use of one or more IP addresses for the duration of this Agreement. Any IP address assigned to you is subject to change at any time and may also be simultaneously assigned to other customers. You shall have no claim or right of ownership to any IP address assigned to you under this Agreement.
    
    
20. You hereby grant to us a non-exclusive, royalty-free, worldwide right and license during the term of this Agreement to do the following to the extent necessary in the performance of the Services:
    
    
    1. digitize, convert, install, upload, select, order, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit, distribute, publish, publicly display, publicly perform, and hyperlink your Content; and
       
       
    2. make archival or backup copies of your Content and your Web Site.
       
       
    Except for the rights expressly granted above, we are not acquiring any right, title, or interest in or to your Content, all of which shall remain solely with you or other third party(ies) as applicable.
    
    
21. Service Interruptions
    
    
    1. For any calendar month having one or more confirmed unplanned and unannounced interruptions in the Services lasting 48 or more contiguous hours, you agree that the exclusive remedy to you shall be a credit of one month service and that such credit shall exclusively be accomplished by adding one month to the end of your current Service term. However, no credit shall be provided in the event that the interruption results from:
       
       
       1. any scheduled or announced maintenance or other activity; or
          
          
       2. any actions by you; or
          
          
       3. the performance or failure of your equipment, facilities, or applications; or
          
          
       4. circumstances beyond our control, including, but not limited to, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance; interruption or delay in transportation; unavailability or interruption or delay in telecommunications or third party services, including DNS propagation or domain name registration/transfer; failure of third party software or hardware; or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of your Web Site; or
          
          
       5. a client violating any item in any of our policies causing a machine or service to fail as a result.
          
          
    2. You agree that no remedy shall be required for any interruption in the Services except as provided for in this section.
       
       
    3. In order to receive a credit under the provisions of this section, you must request such credit within seven (7) days after you experienced the interruption. You must request credit by sending an e-mail message to billing@cheaperwebhost.com. You must include the type of service, your e-mail address, account name, and if pertaining to web hosting, the domain name that is hosted. We may request additional information related to your request. We will respond with an e-mail indicating whether or not your request was approved and any credit that will be applied.
       
       
22. Monitoring the Services
    
    We have no obligation to monitor the Services, but may do so and disclose information regarding use of the Services for any reason if we, in our sole discretion, believe that it is reasonable to do so, including to: satisfy laws, regulations, or governmental or legal requests; operate the Service properly; or protect ourselves and our customers. We may immediately remove your Content from the Services, in whole or in part, which we, in our sole and absolute discretion, determine infringes another's property rights or violates the Acceptable Use Policy or other policies or laws.
    
    
23. You agree that any feedback, data, answers, questions, comments, suggestions, ideas, or the like which you send to us relating to the Services will be treated as non-confidential and non-proprietary. We may use, disclose, or publish any ideas, concepts, know-how, or techniques contained in such information for any purpose whatsoever.
    
    
24. Proprietary Information
    
    
    1. As a result of our relationship with you, we may obtain confidential and proprietary information ("Proprietary Information") relating to you. Such Proprietary Information shall not include information that is or becomes publicly known through no wrongful act of ours. We will not use or disclose Proprietary Information to third parties without your prior written consent, except for use of such Proprietary Information as required in connection with the performance of our obligations under this Agreement. You agree to undertake reasonable measures to ensure that the Proprietary Information is kept confidential. We agree to report immediately to you any unauthorized disclosure of Proprietary Information of which we have knowledge. The provisions of this section shall survive the expiration or termination of this Agreement for any reason.
       
       
    2. You acknowledge that by reason of your relationship with us that you may have access to certain information and materials relating to our business, customers, software technology, and marketing which we treat as confidential and proprietary ("Proprietary Information"). You shall: (i) hold in confidence, and not disclose or reveal to any person or entity, any Proprietary Information without the clear and express prior written consent of a duly authorized representative of Kudzu Corner, Inc.; and (ii) not use or disclose any of the Proprietary Information for any purpose at any time, other than for the limited purpose of performance under this Agreement. These obligations shall continue indefinitely for so long as the Proprietary Information is a trade secret under applicable law and shall continue for two (2) years following termination of this Agreement with respect to Proprietary Information which does not rise to the level of a trade secret.
       
       
25. You acknowledge and agree that neither Kudzu Corner, Inc., its affiliates, nor any of their respective shareholders, directors, officers, employees, agents, partners, licensors, service providers, resellers, successors, or assigns shall be liable to you in the event that we are ordered or required, as a result of a court order or legal settlement, or contractual requirement with any licensor or service provider, to desist from using or permitting the use of the Services. If as a result of such action you lose use of the Services, your sole remedy shall be the refund of a pro-rata share of any monies you prepaid to us.
    
    
26. You shall indemnify and vigorously and in good faith defend Kudzu Corner, Inc. in any court of law, arbitration hearing, or other tribunal against any and all third party claims, demands, suits, actions, judgments, awards, losses, costs, damages (direct, indirect, and consequential), attorney's fees, and expenses that Kudzu Corner, Inc. may sustain or incur by reason of: (i) any breach or alleged breach of any term or condition of this Agreement, the Acceptable Use Policy, or our other agreements and policies; (ii) any act or omission of you or your clients which are in any way related to the Services; (iii) any injury to person or property caused by any products or services sold or distributed in association with the Services; and (iv) any defective products sold in association with the Services.
    
    
27. Disclaimer of Warranty
    
    
    1. YOU EXPRESSLY AGREE THAT USE OF THE SERVICES IS AT YOUR SOLE RISK. NEITHER KUDZU CORNER, INC., ITS AFFILIATES, NOR ANY OF THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, LICENSORS, SERVICE PROVIDERS, RESELLERS, SUCCESSORS, OR ASSIGNS WARRANT THAT USE OF THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE, COMPLETELY SECURE, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. NO ADVICE OR INFORMATION GIVEN BY KUDZU CORNER, INC. OR ITS REPRESENTATIVES SHALL CREATE A WARRANTY. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, ANY WRITTEN MATERIALS BY KUDZU CORNER, INC. OR INFORMATION ON THE CHEAPERWEBHOST.COM WEB SITE SHALL BE FOR INFORMATIONAL PURPOSES ONLY AND, WHETHER DELIVERED OR DISSEMINATED BEFORE OR AFTER THE DATE OF THIS AGREEMENT, SHALL NOT CREATE ANY EXPRESS OR IMPLIED WARRANTY, GUARANTY OF PERFORMANCE, OR CONTRACTUAL OBLIGATION.
       
       
    2. THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT. THE ENTIRE RISK AS TO THE PERFORMANCE OF, OR ARISING OUT OF THE USE OF, THE SERVICES IS BORNE BY YOU. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THE AGREEMENT.
       
       
28. Limitation of Liability
    
    
    1. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL KUDZU CORNER, INC., ITS AFFILIATES, NOR ANY OF THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, LICENSORS, SERVICE PROVIDERS, RESELLERS, SUCCESSORS, OR ASSIGNS BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES RESULTING FROM THE USE OF OR THE INABILITY TO USE THE SERVICES, THE PERFORMANCE OF THE SERVICES, OR DAMAGES FOR LOSS OF GOODWILL, BUSINESS PROFIT, BUSINESS STOPPAGE, LOSS OF DATA OR BUSINESS INFORMATION, COMPUTER FAILURE OR MALFUNCTION, COMPUTER DAMAGE, SERVERS GOING OFF-LINE OR BEING UNAVAILABLE FOR ANY OTHER REASON WHATSOEVER, OR DAMAGES RESULTING FROM UNAUTHORIZED ACCESS TO OR CHANGES MADE TO YOUR TRANSMISSIONS OR DATA, PAIN AND SUFFERING, EMOTIONAL DISTRESS, OR ANY AND ALL OTHER COMMERCIAL OR NON-COMMERCIAL DAMAGES OR LOSSES, EVEN IF KUDZU CORNER, INC. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL KUDZU CORNER, INC. BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE TOTAL AMOUNT OF SERVICE FEES PAID BY YOU DURING THE THREE MONTHS IMMEDIATELY PRECEDING A CLAIM. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU, AND IN SUCH STATES OUR LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
       
       
    2. KUDZU CORNER, INC. SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS, OR PROCEEDINGS RESULTING FROM: OTHER USERS ACCESSING YOUR COMPUTER; SECURITY BREACHES; THE UNAUTHORIZED USE OR MISUSE OF YOUR ACCOUNT IDENTIFIER OR PASSWORD; EAVESDROPPING; DENIAL OF SERVICE ATTACKS; INTERCEPTION OF TRAFFIC SENT OR RECEIVED USING THE SERVICES; DATA NON-DELIVERY, MIS-DELIVERY, ERASURE, THEFT, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION; YOUR RELIANCE ON OR USE OF THE EQUIPMENT OR SERVICES, OR THE MISTAKES, OMISSION, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, TRANSMISSIONS, OR ANY FAILURE OF PERFORMANCE OF THE EQUIPMENT OR SERVICES; THE USE OF THE EQUIPMENT OR SERVICES BY YOU OR A THIRD PARTY THAT INFRINGES THE COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, CONFIDENTIALITY, PRIVACY, OR OTHER INDUSTRIAL OR INTELLECTUAL PROPERTY RIGHTS., PROPRIETARY RIGHTS, OR CONTRACTUAL RIGHTS OF ANY THIRD PARTY; THE ACCURACY, COMPLETENESS, AND USEFULNESS OF ALL SERVICES, PRODUCTS, AND OTHER INFORMATION, AND THE QUALITY AND MERCHANTABILITY OF ALL MERCHANDISE PROVIDED THROUGH THE SERVICES OR THE INTERNET.
       
       
    3. THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORD, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION. YOU SPECIFICALLY ACKNOWLEDGE THAT KUDZU CORNER, INC. IS NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY INDIVIDUAL OR THIRD-PARTIES IN CONNECTION WITH THE USE OF THE SERVICES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
       
       
29. FORCE MAJEURE
    
    We are not responsible for performing obligations when delayed or hindered by acts of any governmental body; war; terrorism; riot; sabotage; embargo; fire; flood; strike or other labor disturbance; interruption of or delay in transportation; unavailability of, interruption, or delay in telecommunications or third party services; failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Services; or any other events beyond our control.
    
    
30. Indemnification
    
    You agree to defend, indemnify and hold harmless Kudzu Corner, Inc., its affiliates and their respective shareholders, directors, officers, employees, agents, partners, licensors, service providers, resellers, successors, and assigns from and against all liability, claims, costs, expenses, injuries, and losses, including attorneys' fees and costs, arising out of any disputes or use of the Services.
    
    
31. Refusal of Service
    
    We reserve the right to refuse, suspend, or cancel service at our sole discretion at any time, for any reason, and no refund will be given.
    
    
32. Severability
    
    If any of the provisions, or portions thereof, of this Agreement are found to be invalid, illegal, or unenforceable under any applicable statute or rule of law, then, that provision notwithstanding, this Agreement shall remain in full force and effect and such provision or portion thereof shall be reformed only to the extent necessary to make it enforceable.
    
    
33. Assignment; Successors
    
    You may not assign, transfer, or delegate your rights or obligations under this Agreement without the prior written consent of Kudzu Corner, Inc., and any attempted assignment, transfer, or delegation without such consent shall be null and void and of no force or effect whatsoever. Kudzu Corner, Inc. may assign its rights and obligations under this Agreement, and may subcontract any of its work, obligations, or other performance required under this Agreement without your consent.
    
    
34. Non-Waiver Provision
    
    Any waiver of any provision of this Agreement, or a delay by any party in the enforcement of any right hereunder, shall neither be construed as a continuing waiver nor create an expectation of non-enforcement of that or any other provision or right of this Agreement unless specifically stated in writing to the contrary.
    
    
35. This Agreement, including documents incorporated herein by reference, each established by Kudzu Corner, Inc., constitute the sole and entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous written or oral communications, proposals, agreements, and representations with respect to such subject matter. This Agreement shall be construed in accordance with the laws of the State of Georgia, without regard to its conflict of laws rules. The parties expressly disclaim application of the United Nations Convention on Contracts for the International Sale of Goods. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. By using the Services, you agree and contract that any controversy or claim arising out of or relating to this Agreement, the formation of this Agreement, or the breach of this Agreement shall be settled by arbitration and administered by the American Arbitration Association under its Commercial Arbitration Rules. Any such arbitration will be governed by Georgia law and will be held in Atlanta, Georgia. The arbitrator will be an expert in the field of Internet services. The arbitrator's award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. In the event that you bring any action against Kudzu Corner, Inc. or any other person or entity with respect to the Services in any court, tribunal, or venue other than the aforementioned arbitration venue, then you in bringing or participating in said action shall indemnify Kudzu Corner, Inc. for all costs, attorneys' fees, and expenses of defending said actions and you hereby agree to permit the transfer of any such action to the aforementioned arbitration venue. In the event you bring any action for any reason against Kudzu Corner, Inc., and Kudzu Corner, Inc. is the prevailing party in said action, you will pay for all of Kudzu Corner, Inc.'s reasonable legal and arbitration fees and expenses. There shall be no class action arbitration pursuant to this Agreement.
    
    
36. Notwithstanding the above, Kudzu Corner, Inc. may apply to any court of competent jurisdiction: (i) for a temporary restraining order, preliminary injunction, or other interim or conservatory relief as necessary, including without limitation for breach of our policies, or (ii) to collect fees due and owing from you pursuant to this Agreement, without breach of this arbitration agreement and without any abridgment of the powers of the arbitrator.
    
    
37. Limitation of Actions
    
    No action, regardless of form, arising by reason of or in connection with this Agreement or the Services, may be brought by either party more than two (2) years after the cause of action has arisen, regardless of any law to the contrary.
    
    
38. Notices
    
    You agree that, unless other instructions are posted on the CheaperWebHost.com web site, any notices and demands required to be given under this Agreement shall be deemed to have been duly made and given if sent by e-mail or FAX, or sent by certified mail return receipt requested, or sent by a recognized overnight delivery service to each of the parties in accordance with the most current contact information you have provided to us and the contact information for Kudzu Corner, Inc. posted on the CheaperWebHost.com web site. All notices shall be effective upon receipt, except that e-mail and FAX notices shall be effective upon transmission.
    
    
39. Kudzu Corner, Inc. may revise, amend, or modify this Agreement at any time, in any manner, and without notice, effective upon posting of the modified Agreement on our website at http://www.cheaperwebhost.com. This Agreement may not be amended or modified by you except by means of a written document signed by both you and an authorized representative of Kudzu Corner, Inc.
    
    
40. Nothing in this Agreement or in the understanding of the parties construes upon the parties the status of agency, partnership, or any other form of joint enterprise between the parties. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.
    
    
41. The section and paragraph headings and labels used herein are for convenience only and shall not be of any legal importance.
    
    
42. Binding Effect
    
    Except as otherwise provided in this Agreement, every covenant, term, and provision of this Agreement shall be binding upon and inure to the benefit of Kudzu Corner, Inc. and its respective successors, transferees, and assigns.
    
    
43. Construction
    
    Every covenant, term, and provision of this Agreement shall be construed simply according to its fair meaning and not strictly for or against any Member.
    
    
44. Variation of Terms
    
    All terms and any variations thereof shall be deemed to refer to masculine, feminine, or neuter, singular or plural, as the identity of the Person or Persons may require.
    
    
45. Counterpart Execution
    
    If this Agreement is signed manually, it may be executed in any number of counterparts with the same effect as if all of the parties had signed the same document. Each counterpart shall be deemed an original, and all counterparts shall be construed together and shall constitute one Agreement. If this Agreement is signed electronically, including using a typed signature in an online form indicating acceptance, our records of such execution shall be presumed accurate unless proven otherwise.
    
    
46. Location of Service
    
    You agree and acknowledge that any acceptance of your application for the Services and the performance thereof will occur at our offices in Tucker, Georgia, the location of our principal place of business.
    
    

- End of Web Hosting and E-Mail Services Agreement -

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