Web Hosting Services Agreement

This Web Hosting Services Agreement ("Agreement") is a valid legal agreement between Affinity Internet, Inc. ("Affinity") and you, the individual or single entity ordering Affinity's web hosting services ("Services") either via an on-line order form or via Affinity's customer service call center ("Sign-up Process"). This Agreement governs your purchase and use of Affinity's Services ordered by you during the Sign-up Process.

You must complete the acceptance process below before Affinity will activate the Services. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE COMPLETING THE ACCEPTANCE PROCESS. By selecting the "ACCEPT" button below, you agree to be bound by the terms and conditions of this Agreement ("Terms of Service"). If you do not agree to be bound by these Terms of Service, you should select the "DECLINE" button below. Affinity reserves the right to reject this Agreement for any reason prior to acceptance. Activation of the Services will indicate Affinity's acceptance of this Agreement.

Affinity may amend or otherwise modify this Agreement at any time and from time to time without notice to you. You will be bound by the amended Agreement upon your continued use of the Services after the revised Agreement is posted at this web site. You may identify whether Affinity has revised this Agreement by the "Last Modified" date first stated above. Except when expressly agreed to the contrary in writing by an authorized representative of Affinity, this Agreement supersedes any other agreement, representation, or warranty made by Affinity, whether written, verbal, or otherwise.

1. Services

1.1 Affinity offers a number of standard and customized shared and dedicated web hosting plans as published on the Affinity website for the particular brand of Service offered by Affinity. You may also purchase optional add-ons. Subject to these Terms of Service and during the term of this Agreement, Affinity agrees to provide to you the Services you select during the Sign-up Process. Affinity reserves the right to amend its Services offerings and to add, delete, suspend or modify the terms and conditions of the Services, at any time and from time to time, and to determine whether and when any such changes apply to both existing and future customers.

1.2 At your request, and subject to your agreement during the ordering process to the applicable registration agreement established by third parties who provide domain name registration services to Affinity and the payment of applicable fees, additional Services that you purchase from Affinity may include acquisition and registration of a second-level domain name on your behalf. You hereby appoint Affinity and third parties who provide domain name registration services to Affinity as your agents for the registration and ongoing administration of domain names on your behalf and you authorize Affinity and third parties who provide domain name registration services to Affinity to select and issue binding instructions to domain name registrars and registries used to acquire, register and administer domain names on your behalf. Affinity provides this Service as a convenience to you only and you hereby waive any and all claims that you may have, or which may later arise, against Affinity or such third party provider for any and all damages, losses, claims or expenses arising out of or related to the registration and/or use of such domain name. In addition, Affinity reserves the right, in Affinity's sole discretion, to refuse to register any domain name requested by you, and to discontinue the use of any domain name requested by you.

1.3 Affinity offers domain name registration services as an accredited registrar with the Internet Corporation for Assigned Names and Numbers (ICANN). Currently, Affinity works with DomainPeople, Inc. and Tucows, Inc., each also an ICANN accredited registrar, to provide these services to its customers. Upon Affinity providing you domain name registration services and your payment of applicable fees, you hereby agree to the terms and conditions of DomainPeople's Registration Agreement at http://www.domainpeople.com/registrationagreement.htm or Tucows' Registration Agreement at http://resellers.tucows.com/contracts/tld/exhibita, as applicable, and in the case of conflict between the two you agree to follow the terms of DomainPeople's Registration Agreement, and the following terms and conditions applicable to all Affinity Brand domain name registration services:

• You acknowledge and agree that Affinity cannot guarantee that you will obtain a desired domain name registration, even if an inquiry indicates that a domain name is available at the time of your application for same. You represent that, to the best of the your knowledge and belief, neither the registration of the domain name nor the manner in which it is directly or indirectly to be used, infringes upon the legal rights of a third party and further, that the domain name is not being registered for nor shall it at any time whatsoever be used for any unlawful purpose.
• You acknowledge that registering or reserving a domain name does not guarantee immunity from objection, challenge, suspension, cancellation, transfer or revocation of that domain name by Affinity, the Internet Corporation for Assigned Names and Numbers (ICANN), government bodies, or third parties.
• You acknowledge and agree to submit to proceedings under ICANN's Uniform Domain Dispute Policy ("UDRP") http://www.icann.org/dndr/udrp/policy.htm and comply with all other requirements set forth by ICANN, applicable registries, governing bodies, and agencies providing enforceable law, rules, and policies for domain name registrants. You agree that in the event a domain name dispute arises with any third party, you will indemnify and hold us harmless pursuant to the terms and conditions contained in the applicable policy. If Affinity is notified that a complaint has been filed with a judicial or administrative body regarding your domain name, Affinity may, at its sole discretion, suspend your ability to use your domain name or to make modifications to your registration records until (i) Affinity is directed to do so by the judicial or administrative body, or (ii) Affinity receives notification by you and the other party contesting your domain that the dispute has been settled. Furthermore, you agree that if you are subject to litigation regarding your registration or use of your domain name, Affinity may deposit control of your registration record into the registry of the judicial body by supplying a party with a registrar certificate from us.
• The person named as Registrant in the required "Whois" database of registered domain names managed by all registrars shall be the registered name holder. The person named as Administrative contact at the time the controlling Account Identifier and Password are secured, shall be deemed the designate of the Registrant with the authority to manage the domain name. You agree that prior to transferring ownership of your domain name to another person (the "Transferee") you shall require the Transferee to agree, in writing to be bound by all the terms and conditions of this Agreement. If the Transferee fails to be bound in a reasonable fashion (as determined by us in our sole discretion) to the terms and conditions in this Agreement, any such transfer will be null and void.
• As part of the registration process, you are required to provide us certain information and to update us promptly as such information changes such that our records are current, complete and accurate at all times. You are obliged to provide us the following information:
  • your name and postal address (or, if different, that of the domain name holder);
  • the domain name being registered;
  • the name, postal address, e-mail address, and voice and fax (if available) telephone numbers of the administrative contact for the domain name;
  • the name, postal address, e-mail address, and voice and fax (if available) telephone numbers of the billing contact for the domain name; and
  • the name, postal address, e-mail address, and voice and fax (if available) telephone numbers of the technical contact for the domain name.
  
  
• You agree and acknowledge that we may make domain name registration information you provide available to ICANN, to the registry administrators, law enforcement agencies and to other third parties as applicable. You further agree and acknowledge that we may make publicly available, or directly available to third party vendors, some or all, of the domain name registration information you provide, for purposes of inspection (such as through the Whois service) or other purposes as required or permitted by ICANN and applicable laws. You hereby irrevocably waive any and all claims and causes of action you have arising from such disclosure or use of your domain name registration by Affinity.
• Your willful provision of inaccurate or unreliable information, your willful failure to promptly update information provided to us, or any failure to respond to inquiries by us addressed to the e-mail address of the registrant, the administrative, billing or technical contact appearing in the Whois directory with respect to a domain name concerning the accuracy of contact details associated with the registration shall constitute a material breach of this Agreement and be a basis for cancellation of the domain name registration.
• You acknowledge that Affinity provides domain name services subject to its ICANN accreditation and are provided at Affinity's sole discretion. If Affinity for any reason ceases providing domain name services, your sole remedy shall be to transfer your domain name to another registrar.
• You acknowledge, understand, and agree that Affinity may change or cease using any or all of the domain name registrars that Affinity works with to provide domain name registration services to you. In this regard, you further agree that Affinity may transfer your domain name from one registrar to another as designated at Affinity's sole discretion and that you will cooperate with Affinity in executing such transactions and that you will be bound by the applicable registration agreement of the succeeding registrar. You hereby expressly consent to, and shall make no claim against Affinity or the succeeding registrar relating to, Affinity or the succeeding registrar replacing itself as the administrative contact for the domain name(s) being transferred but solely for the purpose of facilitating such transfer only. You will at all times remain the registrant of record (otherwise owner) of your domain name(s), subject to the terms of this Agreement.
• You hereby expressly consent to Affinity sending you notices by email or other means for various matters, including, but not limited to, expiration of your domain name registration, promotional offers, and incorrect Whois data. However, you acknowledge, understand, and agree that Affinity provides expiration notices as a courtesy only and is not obligated to provide them. You are solely responsible, and Affinity is not responsible in any way, for ensuring that your domain name is renewed or restored before expiration or deletion.
• In consideration for providing additional optional services for which Affinity does not charge an additional fee, including, but not limited to, URL forwarding, email forwarding, free parking page, free website hosting, free email services, or other services which Affinity may introduce from time to time but for which there is not a separate fee ("Free Services"), you agree that, if you use such Free Services, Affinity may display advertising in conjunction therewith through the use of links, pop-up or pop-under browser windows, banner advertisements, audio or video steams, appendices to emails, or other similar advertising means, and that Affinity may aggregate related usage data by means of cookies and other similar means. You agree that said advertising may be for or include but is not limited to Affinity's Web site, Affinity product and service offerings, third-party Web sites, third-party product and service offerings, and/or commercial search engines. You agree that Affinity may change the content and/or appearance of, or disable, said advertising at any time, in its sole discretion, and without prior notice. You agree that from time to time Affinity may provide you with free or low-cost domain name(s) services ("Promotional Name(s)"). If Affinity does so, the services for the Promotional Name(s) will be placed in the same account as your other domain name(s) and you will be listed as the registrant, though Affinity may point the Promotional Name to IP address(es) of our choosing. If you want to assume control over the services provided to the Promotional Name, including the right to transfer or push the Promotional Name service to other registrars or other accounts or the ability to control the DNS settings for the Promotional Name, you must pay the promotional registration fee or renewal fee, if any, and agree to the terms of this Agreement with respect to such Promotional Name(s). If you do not want the Promotional Name services, you may request that you be removed as the registrant of such Promotional Names and Affinity or a third party designated by us will be listed as the domain name registrant.
• Notwithstanding anything to the contrary, whether in this Agreement or any other agreement referenced herein, the following terms shall apply to you and you hereby agree to them:
  • Upon expiration of your domain name(s), and even if it is before deletion of the domain name in the applicable registry's database, you acknowledge that Affinity may direct the domain name to name-servers and IP address(es) designated by us, including, without limitation, to no IP address or to IP address(es) which host a parking page or a commercial search engine that may display advertisements, and you acknowledge that Affinity may either leave your Whois information intact or that Affinity may change the contact information in the Whois output for the expired domain name so that you are no longer the listed registrant of the expired domain name. Once your domain name expires, you agree that you relinquish any proprietary claim you may have over such domain name.
  • Upon expiration of your domain name(s), you acknowledge that certain registry administrators may provide procedures or grace periods during which expired domain name registrations may be renewed. You acknowledge that you assume all risks and all consequences if you wait until close to or after the end of a domain name registration term to attempt to renew the registration. You acknowledge that Affinity, for any reason and in its sole discretion, may choose not to participate in a post-expiration renewal of a domain name and that Affinity shall not be liable therefore. You acknowledge that post-expiration renewal or redemption processes, if any, involve additional fees which Affinity may determine. You acknowledge and agree that expired domain names may be made available to be registered or re-registered to any party at any time.
  • You agree that upon expiration of your domain name, Affinity may, for a period of thirty (30) days (the "Expiry Period"), either i) remove the domain name from the zone of the top-level-domain (meaning that the domain name will no longer resolve), or ii) direct the domain to name-servers and IP address(es) of website(s) designated by us, including, without limitation, to IP address(es) which host a parking page or a commercial search engine that may display advertisements, or (iii) delete the domain name or transfer ownership of the domain name to a third party. If Affinity exercises its rights under this provision, you agree that you have abandoned the domain name and that you relinquish any and all rights that you may have had to the domain to Affinity.
  • After the Expiry Period, you agree that Affinity may, if Affinity has not already done so under its rights during the Expiry Period, either (i) delete the domain name at any time thereafter or (ii) pay the registry's registration fee or otherwise allow it to continue to be registered and that Affinity, or anyone designated by Affinity, may list itself or a third party as the registrant of the domain name in the Whois information and pointing the domain name to the name-server(s) and IP address(es) designated by Affinity or, (iii) put the domain name up for auction or otherwise sell the domain name, in which case you relinquish all rights and control over the domain name and related Services. If Affinity, or a party designated by Affinity, is named as the registrant for the domain name after the Expiry Period, the ability to redeem the Domain may be available to you for a period of thirty (30) days (the "Registrar Redemption Period") for a redemption fee equaling that charged for domain names that have been deleted and available for redemption at the registry. After the Registrar Redemption Period you agree that there will be no recourse for you to regain your domain name.

2. Fees and Payment Terms

2.1 Affinity may charge set up fees, recurring service fees, and other one-time fees for optional services and, if requested by you, fees for domain name registration services (collectively "Service Fees"). Unless otherwise specified in any written offer or promotion, the Service Fees published on the Affinity website for the particular brand of Service you ordered are applicable to all transactions between you and Affinity. Affinity may amend the Services and/or the Service Fees associated with any of the Services at any time and from time to time without notice to you.

2.2 All Service Fees are due according to the schedule published on the Affinity website for the particular brand of Services you ordered or, if not published, on the first day of the billing cycle. All Service Fees and other monetary payments must be made in U.S. Dollars. If you are not billed by invoice, you authorize Affinity to charge the credit card, debit card or bank account (whether via ACH service or otherwise) (your "Payment Process") that you provide to Affinity for payment of the Service Fees for Services you order before Affinity activates the Services. You further authorize Affinity to charge you according to your Payment Process for the amount of all subsequent periodic Service Fees (at Affinity's then-current rates) prior to the commencement of any renewal period for such Services as described in Section 3 of this Agreement and for the amount of all other fees and charges (at Affinity's then-current rates) as they become payable pursuant to this Agreement. Services Fees and all other fees and charges that become due during any renewal period will be charged according to your previous payment option and/or Payment Process. All Payment Process payments are deemed authorized by you and will be assessed in real time.

2.3 If Affinity does not receive payment from your Payment Processor (i.e., credit or debit card issuer or other financial institution), you agree to pay Affinity all amounts due upon demand. Affinity may charge you for a late payment fee equal to one and one-half percent (1.5%) on any overdue balance, or the maximum amount allowed by law if less, for each month or fraction of a month the overdue amount remains unpaid. Affinity may also charge you for an administrative fee for any returned checks or if your Payment Processor declines payment. You agree to pay Affinity's collection costs, including reasonable attorneys' fees, if Affinity is required to take action to collect any amounts that you fail to pay when due pursuant to this Agreement.

2.4 Affinity may, in its sole and exclusive discretion, immediately suspend or terminate your Services without notice to you if you fail to provide valid Payment Processor information or authorization or fail to pay for any Services when due. Affinity may charge a Fifty Dollar ($50.00) fee to reinstate any Service that has been suspended or terminated.

2.5 There is a non-refundable registration fee for all new domains that you purchase through Affinity. Affinity may automatically pay this fee as well as all annual non-refundable renewal fees (both fees also "Service Fees") up to fifteen (15) days in advance of the renewal date on your behalf provided your account is active and current. These Service Fees will appear on your next billing statement unless prior arrangements are made with the Affinity customer service department. You agree that you are responsible for reimbursing Affinity for all Service Fees advanced on your behalf.

3. Term and Termination

3.1 The Agreement will continue for the term stated in during the Sign-up Process or, if no term is stated, on a month-to-month basis. The Agreement will automatically renew for successive terms, each equal in length to that of the initial term. Either party may terminate this Agreement effective at the end of the then current term, whether annual, month-to-month or some other fixed term, upon at least thirty (30) days notice prior to the end of the then current term and such termination will be effective upon expiration on the last day of the then current term. The termination of this Agreement will constitute the termination of all of your Services, except for domain name registration services provided by the applicable registrar. You acknowledge, understand, and agree that termination of this Agreement, your web hosting services or other Services with Affinity does not automatically terminate or affect your domain name or the registration agreement with the registrar of your domain name. You further acknowledge, understand, and agree that termination of your agreement with the registrar of your domain name does not automatically terminate your obligations under this Agreement, meaning charges may continue to accrue on your account, and that you must actively contact Affinity directly if you wish to terminate this Agreement in accordance hereunder.

3.2 If you breach any term of this Agreement including, but not limited to, Section 2 (Fees and Payment Terms) and Section 5 (Restrictions on Use), Affinity may, in its sole and exclusive discretion, suspend or terminate your Services immediately and without notice to you. Service Fees may continue to accrue on suspended accounts and you will continue to remain responsible for the payment of any Service Fees that accrue during the period of suspension.

3.3 If this agreement is terminated for any reason prior to the expiration of the initial term or any successive term, Affinity will not provide any refund or credit to you for any service fees that you paid in advance, by credit card or otherwise, and Affinity may, in addition, charge you an account administration fee of twenty dollars ($20.00). You authorize Affinity, in its sole and exclusive discretion, to charge your Payment Process or forward an invoice to you immediately upon the termination of this Agreement for the amount of any Service Fees that are then outstanding. You acknowledge, understand, and agree that such charges are for liquidated damages and not as penalties for early or unauthorized termination hereof.

4. Warranty Disclaimers and Limitations of Liability

You agree that the warranty disclaimers and limitations of liability provisions set forth in this section 4 are reasonable and are fundamental elements of the agreement between you and Affinity. You acknowledge that Affinity would not be able to provide the services on an economic basis without such disclaimers and limitations.

4.1 Affinity provides the services (including, but not limited to, any software, services or technology licensed from third party providers) and the licensed material (as defined in section 7.2 below) to you on an "as is" and "as available" basis. Affinity makes no express warranties of any kind and disclaims all implied warranties including, but not limited to, warranties of merchantability, fitness for a particular purpose, title and non-infringement regarding any services or any equipment that Affinity may provide to you or regarding the licensed material. Affinity does not warrant that the services, the licensed material or the use of either will be without interruption, error-free or free from viruses or other harmful components. Affinity makes no warranties as to the results that may be obtained from the use of the services or the licensed material or as to the accuracy, reliability or content of any information, services or merchandise contained in or provided through the services, the licensed material or the internet. Affinity is not liable, and expressly disclaims any liability, for the content of any data transferred either to or from you or stored by you or any of your customers via the services provided by Affinity. No oral advice or written information given by Affinity, its employees, representatives, agents, affiliates or contractors will create a warranty, express or implied, nor may you rely on any such advice or information. Some states (United States only) do not allow the exclusion of implied warranties. Consequently, the above exclusion may not apply to you to that limited extent. You agree that, if applicable law requires any warranties with respect to the services, the licensed material or any equipment that Affinity may provide to you, all such warranties will be limited in duration to ninety (90) days from the date the service commenced or the licensed material is installed.

4.2 You agree to indemnify, defend and hold harmless Affinity and its subsidiaries and affiliates from and against any and all liabilities, claims, losses, damages, costs and expenses, including, but not limited to, reasonable attorneys' fees, related to or arising from: (i) your and your end users' use of the services and/or the licensed material; (ii) any violation of the AUP; (iii) any liabilities, claims, or expenses arising from your registration, attempt to register, maintenance, infringement, or protection of a domain name and the rights associated with such, (iv) any breach by you any provision of this agreement; and/or (v) any acts or omissions by you.

4.3 Information obtained by you from the Internet may be inaccurate, offensive or in some cases illegal. Affinity has no control over information contained on the Internet and accepts no responsibility for any information that you may receive via the Internet.

4.4 You accept full responsibility to verify the truth and accuracy, legality and ownership of the information that you disseminate or display in connection with your use of the Services or obtain from the Internet.

4.5 You agree that if Affinity takes any corrective action under this Agreement in response to your or your end users' actions or failures to act, that corrective action may adversely affect you or your end users and you agree that Affinity shall have no liability to you or your end users due to any corrective action taken by Affinity.

4.6 Affinity strongly encourages you to back-up your data regularly. You agree that Affinity has no obligation to back-up any data related to your website unless Affinity expressly agrees otherwise in writing and you have currently paid for such back-up Services. You agree that you will regularly back-up your data whether or not Affinity has any obligation to do so. You further agree that your failure to back-up your data regularly will mitigate against any claim for damages you may bring against Affinity relating to any loss of your data.

4.7 The server Affinity provides for your dedicated hosting services is accessible only to you and is dedicated solely to your use. However, you acknowledge that Affinity often re-uses and/or recommissions its dedicated servers to accommodate changing client demands. While Affinity follows standard hard drive data cleansing procedures, you acknowledge that the server used to provide your dedicated hosting services may have been used to provide such services to other Affinity clients in the past, and may be used to provide such services to other Affinity clients in the future. Because of this, data or meta-data shadows may physically remain on the drive even after cleaning it, although the data cannot be accessed without performing extraordinary procedures, if at all. While unlikely, Affinity cannot completely ensure that your deleted data will not be accessible to future Affinity dedicated hosting customers who will use your server for dedicated hosting services. You agree to never recover or reconstruct, or attempt to recover or reconstruct, any data previously saved on any hard drive provided for your dedicated hosting services. You will be solely responsible for any damages or losses to Affinity, and will indemnify Affinity for any third party losses, resulting from a violation of this paragraph.

4.8 You agree that, to the maximum extent permitted by applicable law, you will not under any circumstances including, but not limited to, negligence, hold Affinity or its licensors liable for any indirect, incidental, special, consequential or punitive damages whatsoever including, but not limited to, damages for loss of profits, cost savings, revenue, business, data or use, or any other pecuniary loss by you, any of your end users or any other third party. You agree that the foregoing limitations apply whether in an action in contract or tort or any other legal theory and apply even if Affinity has been advised of the possibility of such damages. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages; you agree that in those jurisdictions Affinity's liability will be limited to the extent permitted by law.

4.9 You agree that you will not hold Affinity or its licensors liable under any circumstance for any damages that you suffer that result from (i) the use of or inability to use the services or licensed material, (ii) mistakes, omissions, interruptions, deletion of files, loss or corruption of data and/or back-up data, failure to perform data back-up functions (other than those expressly agreed to by Affinity and currently paid for by you), errors, viruses, defects, delays in operation or transmission, non-deliveries, misdeliveries or any failure of performance, whether or not caused by Affinity's negligence, acts of god, any failure of Affinity's network or systems, theft, destruction or unauthorized access to Affinity's records, programs, equipment or services; (iii) your acts or omissions; or (iv) the acts or omissions of third parties.

4.10 You agree that Affinity's maximum liability to you under this agreement for all damages, losses, costs and causes of actions from any and all claims (whether in contract, tort or other legal theory) shall be limited to the lesser of (a) the total amount of service fees actually paid by you to Affinity for the three month period immediately preceding the date on which the damage or loss occurred or the cause of action arose, (b) proven direct damages, and (c) ten thousand dollars ($10,000.00).

4.11 The terms of this Section 4 shall survive any termination of this Agreement.

5. Restrictions on Use

5.1 Your use of the Services is subject to Affinity's Acceptable Use Policy, as revised from time to time (the "AUP"), which is incorporated herein by reference. The AUP is available on Affinity's website at http://www.affinity.com/about/usage_policy.htm. In the event of any inconsistencies between this Agreement and the AUP, the terms of the AUP shall govern.

5.2 Affinity is not responsible for monitoring the content that is submitted, stored, distributed or disseminated by you via the Services (the "Your Content"); however, Affinity reserves the right to monitor Your Content at its sole discretion without incurring any obligation to continue to monitor or any liability thereto. Your Content includes content of your end users and/or users of your website. Accordingly, you are responsible for your end users' content and all activities on your website. Affinity, in its sole and exclusive discretion, may immediately take corrective action, including, but not limited to, removal of all or a portion of Your Content and suspension and/or termination of your Services, in the event of notice of any possible violation of the AUP by you or your end users. You agree that Affinity will have no liability to you or any of your end users due to any corrective action that Affinity may take and that you will not be entitled to a refund of any fees paid in advance prior to the corrective action.

5.3 You warrant that Your Content does not violate or infringe any copyright, trademark, patent or intellectual or other proprietary property right of any third party or contain any obscene or libelous material or otherwise violate any law or regulation.

5.4 Your use of networks or computing resources provided to Affinity by third party providers and made available to you as part of the Services is subject to the respective permission and usage policies of such third parties.

5.5 You expressly (i) grant to Affinity a license to cache the entirety of Your Content and your web site, including content supplied by third parties, hosted by Affinity under this Agreement, and (ii) agree that such caching is not an infringement of any of your intellectual property rights or any third party's intellectual property rights.

5.6 If Affinity assigns to you an Internet Protocol address for your use, you may use that Internet Protocol address only as expressly permitted by Affinity in connection with your use of the Services during the term of this Agreement. Affinity will maintain and control ownership of all Internet Protocol numbers and addresses that may be assigned to you by Affinity. Affinity reserves the right, in its sole and exclusive discretion, to change or remove any and all such Internet Protocol numbers and addresses.

5.7 You agree that you will not use excessive amounts of CPU processing on any of Affinity's servers. Affinity, in its sole and exclusive discretion, may immediately take corrective action, including, but not limited to, assessment of additional fees and suspension and/or termination of Services, in the event you violate this policy. You agree that Affinity will have no liability to you or any of your end users due to any corrective action that Affinity may take and that you will not be entitled to a refund of any fees paid in advance prior to the corrective action.

5.8 You agree that you will not use bandwidth and disk usage amounts that exceed the limits applicable to your Services as published on the Affinity website for the particular brand of Services you ordered ("Agreed Usage"). Affinity will monitor your bandwidth and disk usage. Affinity, in its sole and exclusive discretion, may immediately take corrective action, including, but not limited to, assessment of additional fees and suspension and/or termination of Services, in the event you exceed the Agreed Usage. You agree that Affinity will have no liability to you or any of your end users due to any corrective action that Affinity may take and that you will not be entitled to a refund of any fees paid in advance prior to the corrective action.

6. Trademarks and Proprietary Rights

6.1 Affinity (SM), ValueWeb (SM), Bigstep (SM), HostSave (SM), WinSave (SM) and other pending and/or registered trademarks and service marks, and other graphics, logos, and service names used by Affinity in connection with the Services or other products or services offered by Affinity and its subsidiaries and affiliates, to identify the products or Services of Affinity or its subsidiaries and affiliates (collectively the "Affinity Trademarks") are the trademarks of Affinity and its subsidiaries and affiliates. You agree not to use the Affinity Trademarks in connection with your products or services, or any third-party's products or services, or in any manner that disparages or discredits Affinity. All other brands and names (including third-party product names) used in connection with the Services or other products or services offered by Affinity and its subsidiaries and affiliates are the property of their respective owners.

6.2 Affinity acknowledges that it claims no proprietary rights in Your Content or any intellectual property right contained therein. You acknowledge and agree that Affinity and its licensors own all right, title, and interest in: (a) the Services and any other products or services offered by Affinity and its subsidiaries and affiliates; (b) the technology available to you as part of the Services; (c) and all content, including but not limited to text, software, music, sound, photographs, video, graphics, or other material contained or maintained on the websites maintained by Affinity and its subsidiaries and affiliates (collectively "Affinity Content"), excluding Your Content.

7. License

7.1 This Section 7 (the "License") applies to you only if you use software licensed to you in connection with the Services and is in addition to and not in lieu of all other Terms of Service that govern your Services.

7.2 In connection with the Services, Affinity may make available to you the Affinity Content, certain technology and software owned by Affinity or third parties (which may include corresponding documentation, associated software components, media, printed materials, and "online" and electronic documentation and all updates and upgrades thereto) (the "Licensed Material"). You agree that the Licensed Material is the exclusive property of Affinity and its licensors and is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.

7.3 Affinity grants to you the non-exclusive right to install the Licensed Material on a single computer; or install and store the Licensed Material on a single storage device, such as a network server, used only to install the Licensed Material on your other computers over an internal network, provided you have a license for each separate computer on which the Licensed Material is installed and run. The Licensed Material is licensed, not sold. The license for the Licensed Material may not be shared, installed or used concurrently on different computers. In the event the Licensed Material is distributed along with other Affinity Licensed Materials as part of a suite of products (collectively, the "Suite"), the license of the Suite is licensed as a single product and none of the products in the Suite, including the Licensed Material, may be separated for installation or use on more than one computer.

7.4 You may not remove or alter any copyright notices on any copies of the Licensed Material. You may not make or distribute copies of the Licensed Material to third parties or electronically transfer the Licensed Material from one computer to another or over a network. You may not alter, merge, modify, adapt or translate the Licensed Material, or reverse engineer, decompile, or disassemble the Licensed Material, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. You may not modify the Licensed Material or create derivative works based upon the Licensed Material. You may not sell, rent, lease, lend, assign, transfer or sublicense the Licensed Material. You must comply with all applicable laws regarding use of the Licensed Material.

Affinity may provide you with support services related to the Licensed Material ("Support Services"). Use of Support Services is governed by the Terms of Service. Any supplemental software code Affinity provides to you as part of the Support Services will be considered part of the Licensed Material and subject to the terms and conditions of this License. With respect to technical information you provide to Affinity as part of the Support Services, Affinity may use such information in compliance with its Privacy Policy.

7.5 Without prejudice to any other rights, Affinity may, in its sole and exclusive discretion, terminate this License if you fail to comply with the terms and conditions of this License. In such event, you must destroy all copies of the Licensed Material. All other rights of both parties and all other provisions of this License will survive any termination.

7.6 The foregoing license gives you limited license to use the Licensed Material. Affinity and its licensors retain all right, title and interest, including, but not limited to, copyright and intellectual property rights, in and to the Licensed Material and any copies thereof. All title and intellectual property rights in and to the content that may be accessed through use of the Licensed Material are the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This License grants you no rights to use such content. Affinity and its licensors reserve all rights not expressly granted.

7.7 The Licensed Material is provided with "RESTRICTED RIGHTS" applicable to private and public licensees alike. Without limiting the foregoing, use, duplication, or disclosure by the United States Government is subject to restrictions as set forth in this License and as provided in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software Restricted Rights at 48 CFR 52.227-19, as applicable.

7.8 You agree that you will not export or re-export the Licensed Material to any country, person, entity or end user prohibited by the United States Export Administration Act and the regulations promulgated thereunder. Restricted countries currently include, but are not necessarily limited to Afghanistan, Cuba, Iran, Iraq, Libya, North Korea, Sudan, and Syria. You represent and warrant that neither the United States Bureau of Export Administration nor any other federal agency has suspended, revoked or denied your export privileges.

7.9 The Licensed Material may contain third party software that require notices and/or additional terms and conditions. All required third party software notices and/or terms and conditions are made a part of and incorporated by reference into this License. By accepting this License, you are also accepting the additional terms and conditions, if any, set forth therein.

8. Notices

It is your responsibility to provide accurate and complete account and contact information, including a valid e-mail address, to Affinity during the Sign-up Process. It is also your responsibility to inform Affinity promptly of any changes to your account or contact information. Affinity has no responsibility for communications that are misdirected as a result of your failure to provide Affinity with updated contact information or as a result of the suspension or termination of your Services.

Affinity may provide notice to you required by this Agreement via e-mail at the address provided by you. You agree that notice to you at this address is deemed sufficient regardless of your receipt of such email. You must provide all notices to Affinity required in writing to Affinity Internet, Inc., Attn: Chief Financial Officer, 3250 W. Commercial Boulevard, Suite 200, Fort Lauderdale, Florida 33309 or as changed by Affinity via its on-line amendment of this Agreement.

9. General

9.1 Affinity is committed to protecting your privacy. You may review Affinity's current Privacy Policy at http://www.affinity.com/about/privacy_policy.htm.

9.2 Affinity will be excused from any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquakes, hurricanes, tropical storms and depressions, inclement weather, labor disputes and strikes, riots, war and governmental requirements.

9.3 This Agreement shall be interpreted under the laws of the State of Florida without regard to any conflict of laws provisions. You hereby consent to the exclusive jurisdiction and venue of the state courts sitting in Broward County, Florida or the federal courts in the Southern District of Florida to resolve any disputes arising under this Agreement.

9.4 If any provision(s) of this Agreement is held to be contrary to law, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the parties with all other provisions of this Agreement remaining in full force and effect.

9.5 Affinity's failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Affinity in writing.

9.6 This Agreement, together with the order form, if any, you submitted on-line to order your Services, the AUP, the Privacy Policy and all documents referenced herein and therein, comprise the entire agreement between you and Affinity and supersedes all prior agreements between the parties regarding the subject matter contained herein. This Agreement shall apply to all additional products and services that you purchase from Affinity or its subsidiaries and affiliates, whether or not you complete the acceptance process with respect to additional products and services (all such additional products or services purchased, also "Services"), and this Agreement will govern your purchase and use of all additional Services.

9.7 This Agreement and your rights hereunder may not be assigned or transferred to any third party. Affinity reserves the right to assign this Agreement to any of its subsidiaries or affiliates or to any third party that acquires all or substantially all of its relevant business or assets.

9.8 You represent and warrant that, if you are an individual, you are at least 18 years of age, that you have read this Agreement, including Affinity's AUP, and that you agree to be bound by the terms and conditions of the Agreement. You acknowledge and agree that Affinity can and will rely on all representations, warranties, covenants and agreements that you make herein.