“EXPAND PROVIDES POWERFUL & CREATIVE MARKETING SOLUTIONS!”

Web Hosting & Related Services Terms of Services & Agreements

 

EXPAND Business Solutions, Inc. provides service to You subject to the following Terms and Conditions, hereinafter referred to as Terms of Service (“TOS”).

 

Definitions

For purposes of this Agreement, the following terms have the meanings specified below:

A. "EXPANDBusinessSolutions.com", "We", "Us", and "Our" refer to EXPAND Business Solutions, Inc.

B. "Customer", "You", "Your" and "Yourself" refer to the Person or entity utilizing the Service.

C. "Agreement" means each contract created between EXPAND Business Solutions, Inc. and Customer for the provision of Services consisting of an Order, the applicable Service Description and these Terms of Service.

D. "System" and "Our Site" means the EXPAND Business Solutions, Inc. web site located at the URL http://www.EXPANDBusinessSolutions.com and any EXPAND Business Solutions, Inc. Technology used in providing Service.

E. "Customer Content" and "Your Content" means all data, graphics, text, names, marks, logos, hypertext links to other Web sites and other information incorporated in, transmitted through or published or displayed on Your Web site.

F. "Customer Web site" and "Your Web site" means Your site on the World Wide Web portion of the Internet that EXPAND Business Solutions, Inc. hosts under this Agreement.

G. "End User" means any Person who accesses or uses Your Web site via the Internet.

H. "EXPAND Business Solutions, Inc. Technology" means EXPAND Business Solutions, Inc.’s proprietary technology, including, without limitation, EXPAND Business Solutions, Inc. services, software tools, hardware designs, algorithms, software (in source code and object code forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, know-how, trade secrets and any related intellectual property rights throughout the world (whether owned by EXPAND Business Solutions, Inc. or licensed to EXPAND Business Solutions, Inc. from a third party), and also including any derivatives, improvements, enhancements, updates, modifications or extensions of EXPAND Business Solutions, Inc. Technology conceived, reduced to practice or developed during the term of this Agreement by either party.

I. "Person" means any individual, partnership, joint venture, corporation, limited liability company, trust, unincorporated association or organization, or government or any agency or political subdivision thereof.

J. "Proprietary Information" means all technical, business and other information of a party (i) that is not generally known to the public, (ii) that derives value, economic or otherwise, from not being generally known to the public or to other Persons who can obtain value from its disclosure or use, and (iii) which information is subject to efforts that are reasonable under the circumstances to maintain the secrecy thereof.

K. "Order" means the Order submitted by the Customer to EXPAND Business Solutions, Inc. for Services, whether such Order is submitted online through EXPAND Business Solutions, Inc.’s Web site, submitted through an e-mail request or on a written Order form.

L. "Prepaid Plan" means Hosting Service provided by EXPAND Business Solutions, Inc. to Customer where the Order provides that the Customer must pay for the Hosting Service in advance for the Initial Term. "Non-Prepaid Plan" means any Hosting Service provided by EXPAND Business Solutions, Inc. to Customer that is not a Prepaid Plan.. EXPAND Business Solutions, Inc. does NOT offer any non-prepaid plans.

M. "Termination Charge" means, with respect to Non-Prepaid Customers only, as of any date of calculation, an amount equal to one hundred percent (100%) of the fees that would become due over the balance of the then-current Term.

N. "Terms of Service" means these Terms of Service, as the same may be modified, altered or amended from time to time by EXPAND Business Solutions, Inc.

O. "Service" means any service provided by EXPAND Business Solutions, Inc. "Domain Registration Service" means the Service provided by EXPAND Business Solutions, Inc. in response to an Order whereby EXPAND Business Solutions, Inc. secures an Internet domain name on behalf of the Customer. "Hosting Service" means the Service provided by EXPAND Business Solutions, Inc. in response to an Order whereby EXPAND Business Solutions, Inc. provides the Customer with specified connectivity, storage space and bandwidth for the hosting of a Customer Web site as more particularly described in the applicable Service Description. "Optional Service" means any additional Service (other than Hosting Service) EXPAND Business Solutions, Inc. may provide in response to an Order, as more particularly described in the applicable Service Description.

P. "Service Description" means the applicable documents made available by EXPAND Business Solutions, Inc. to Customer to describe the applicable Services at the time the Order is accepted by EXPAND Business Solutions, Inc.

Q. "Term" means the duration of any Agreement between EXPAND Business Solutions, Inc. and Customer. With respect to Hosting Services, the "Initial Term" is the initial term specified in the Order and the "Renewal Term" is the period of time beginning on the expiration of the Initial Term and ending on the termination of expiration of the Order in accordance with its terms. With respect to Optional Services, the "Term" begins when EXPAND Business Solutions, Inc. accepts the Order and ends on the first to occur of (i) EXPAND Business Solutions, Inc.’s completion of performance, or (ii) the earlier termination of the Order in any manner permitted by these Terms of Service.

 

1. Contract and Acceptance

Upon the use of the web site or the purchase or use of any of the products or services offered by EXPAND Business Solutions, Inc. and subject to the acceptance by EXPAND Business Solutions, Inc., this Agreement creates a contract between You and EXPAND Business Solutions, Inc. Continued use of any of EXPAND Business Solutions, Inc.’s services constitutes Your acceptance of this contract and Terms of Service.

 

2. Fees and Payment

a. You agree to pay all Service Fees that You incur through the use of EXPAND Business Solutions, Inc.’s service in the manner specified in the Service Fees. You further agree to pay any additional usage fees that You may incur including but not limited to bandwidth or storage usage fees.

b. Service Fees do not include any taxes that may be imposed by any taxing authority. You agree to pay any applicable sales, use, excise or other taxes that may be imposed on any purchases you make from EXPAND Business Solutions, Inc. Any taxes that EXPAND Business Solutions, Inc. may be required to collect on behalf of any taxing authority will be listed as separate charges on all invoices.

c. Unless otherwise specified, all invoices for any fees, charges, or taxes are due and payable within 30 days of the date of invoice.

d. All Service Fees are fully earned when due and are non-refundable upon payment. No refunds.

e. If You provide EXPAND Business Solutions, Inc. credit card, electronic bank draft, or other electronic payment information for the purpose of paying Your Service Fees, you hereby authorize EXPAND Business Solutions, Inc. to perform these periodic charges to your account and agree to supply EXPAND Business Solutions, Inc. with any written documentation required to support these charges to your credit card or banking company. You further agree to provide EXPAND Business Solutions, Inc. written notice to the address in Section 16(f) of any request to terminate the recurring billing of any credit card or bank account for your Service Fees.

f. You agree to provide to and maintain with EXPAND Business Solutions, Inc. current and accurate billing information including your mailing address and credit card or banking information.

g. Interest charges will accrue on any amounts payable to EXPAND Business Solutions, Inc. that are not paid when due at the greater of one and one half percent (1.5%) per month or the maximum rate permitted by law. If a check is returned unpaid, a handling fee of $25 shall be imposed.

h. If it becomes necessary to pursue legal or collection actions to satisfy any outstanding amounts due, You agree to pay all costs of collection, including but not limited to all court costs, collection and attorneys fees.

i. EXPAND Business Solutions, Inc. reserves the right, in the event that We believe a purchase to be fraudulent in nature, to cancel the purchase, refund money, and reverse any registrations related to said purchase.

j. EXPAND Business Solutions, Inc. may increase the Service Fees at any time on or after expiration of the initial term of service by providing 10 days prior written notice to You.

k. EXPAND Business Solutions, Inc. may generally increase or decrease Service Fees and is not required to notify you of any new service offerings, price promotions or cost savings available to You. It is Your obligation to remain informed as to all of EXPAND Business Solutions, Inc.’s service offerings, price promotions, and Service Fees to determine if you are eligible for any cost savings.

 

3. Term and Termination

A. Services will commence on the date of purchase and continue for the duration of the Initial Term as provided in the Service Fees. With the sole exception of Domain Registration Services, the Order will automatically renew for successive periods (i) of twelve months (with respect to Non-Prepaid Plans) or (ii) as specified in the Service Description (with respect to Prepaid Plans) unless the Order is terminated earlier in accordance with its terms, or either party gives written notice to the other party of non-renewal at least 30 days prior to the expiration of the then-current term.

B. Activation or propagation delays of 24-72 hours may apply to certain Services for the Service to be fully available. No pro-rata discounts or refunds are given for such activation delays.

C. Either party may terminate this Agreement immediately if: the other party fails to pay when due any amounts required to be paid under this Agreement; the other party breaches any material term or provision of this Agreement and such breach remains uncured for 30 days after the non-breaching party gives written notice thereof to the breaching party.

D. EXPAND Business Solutions, Inc. may terminate this Agreement (i) if the services are prohibited by applicable law, or become impractical or unfeasible for any technical, legal or regulatory reason, by giving You as much prior notice as reasonably practicable or (ii) immediately by giving written notice to You, if EXPAND Business Solutions, Inc. determines in good faith that Your use of the service violates the Acceptable Use Policy.

E. Upon termination of this Agreement for any cause or reason whatsoever, neither party shall have any further rights or obligations under this Agreement, except as expressly set forth herein. The provisions of Sections 3(f), 4, 9, 11, 12, 14, 15 and 16 of this Agreement shall survive the expiration or termination of this Agreement for any cause or reason whatsoever, and, notwithstanding the expiration or termination of this Agreement, the parties shall each remain liable to the other for any indebtedness or other liability theretofore arising under this Agreement. Termination of this Agreement and retention of pre-paid fees and charges shall be in addition to, and not be in lieu of, any other legal or equitable rights or remedies to which EXPAND Business Solutions, Inc. may be entitled.

F. In the event that this Agreement covers services for a fixed term and is subject to early termination by either party for any reason whatsoever, EXPAND Business Solutions, Inc. may, at its sole discretion, charge a Termination Charge to You for early termination of this Agreement. The parties agree that the Termination Charge constitutes consideration for EXPAND Business Solutions, Inc.’s time, effort and expense in preparing and reserving the capacity to perform its obligations hereunder, as actual damages are difficult to ascertain. Said Termination Charges shall be due within 30 days of termination of this Agreement.

G. Upon expiration, domains may be renewed at current pricing. Once a domain is expired, it must first be renewed prior to being transferred to another Registrar.

 

4. Your Representations and Warranties

You hereby represent and warrant to EXPAND Business Solutions, Inc., and agree that during the Term You will ensure that:

a. You are the owner or valid licensee of Your Content and each element thereof, and You have secured all necessary licenses, consents, permissions, waivers and releases for the use of Your Content and each element thereof, including without limitation, all trademarks, logos, names and likenesses contained therein, without any obligation by EXPAND Business Solutions, Inc. to pay any fees, residuals, guild payments or other compensation of any kind to any Person;

b. Your domain name and the 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 constitute a defamation, invasion of privacy or violation of any right of publicity or any other right of any Person, including, without limitation, any contractual, statutory or common law right or any "moral right" or similar right however denominated;

c. You will comply with all applicable laws, rules and regulations regarding Your Content and Your Web site and will use Your Web site only for lawful purposes; You will comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which You reside;

d. You have used Your best effort to ensure that Your Content is and will at all times remain free of all computer viruses, worms, trojan horses and other malicious code; You will not upload, post, email or otherwise transmit any material that is designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;

e. You will maintain any designated account information including usernames and passwords in a secure manner to prevent unauthorized use of Your account; You will notify Us immediately of any unauthorized use of Your account or any other breach of security;

 

5. License to EXPAND Business Solutions, Inc.

You hereby grant to EXPAND Business Solutions, Inc. a non-exclusive, royalty-free, worldwide right and license during the Term to do the following to the extent necessary in the performance of Services under this Agreement: 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 make archival or back-up copies of Your Content and Your Web site). Except for the rights expressly granted above, EXPAND Business Solutions, Inc. is not acquiring any right, title or interest in or to Your Content, all of which shall remain solely with You.

 

6. Acceptable Use Policy

You will abide by, and utilize the Services and Your Web site only in accordance with, the Acceptable Use Policy (the "Acceptable Use Policy") that EXPAND Business Solutions, Inc. posts on its Web site, as such Acceptable Use Policy may be changed by EXPAND Business Solutions, Inc. from time to time. The Acceptable Use Policy is hereby incorporated herein and made a part hereof by this reference. You shall impose the Acceptable Use Policy on Your customers and End Users to the extent necessary to ensure their compliance. You shall familiarize itself with the Acceptable Use Policy and periodically access EXPAND Business Solutions, Inc.’s Web site to determine if EXPAND Business Solutions, Inc. has made any changes thereto.

 

7. Privacy Policy

EXPAND Business Solutions, Inc. may maintain certain information about You in accordance with the Privacy Policy (the "Privacy Policy") that EXPAND Business Solutions, Inc. posts on its Web site. The Privacy Policy is hereby incorporated herein and made a part thereof by this reference. Pursuant to the Privacy Policy, We may disclose to third-parties certain information we maintain on Your account, provided that such information will NOT include personal information, except as specifically authorized by You or in the good faith belief that such action is reasonably necessary to comply with the law, legal process, to enforce the TOS, or under any of the other circumstances set forth in our privacy policy.

 

8. Your Responsibilities

A. You are are solely responsible for the quality, performance and all other aspects of Your Content and the goods or services provided through Your Web site.

B. You will cooperate fully with EXPAND Business Solutions, Inc. in connection with EXPAND Business Solutions, Inc.’s performance of the Services. You must provide any equipment or software that may be necessary for You to use the Services. Delays in Your performance of Your obligations under this Agreement will extend the time for EXPAND Business Solutions, Inc.’s performance of its obligations that depend on Your performance on a day for day basis. You will notify EXPAND Business Solutions, Inc. of any change in Your mailing address, telephone, e-mail or other contact information.

C. You assume full responsibility for providing End 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 or conditions of use.

D. You will provide EXPAND Business Solutions, Inc. with a registered domain name for Your Web site, or, upon Your request and subject to the terms and conditions set forth below, EXPAND Business Solutions, Inc. will register an Internet domain name on Your behalf. EXPAND Business Solutions, Inc.’s registration of any domain name is subject to (i) EXPAND Business Solutions, Inc. receiving from You all information needed from You in order to complete such registration, and (ii) such domain name not being in violation of any applicable law, rule or regulation or the EXPAND Business Solutions, Inc. Domain Registration Agreement. Registration of a domain name is subject to availability of such domain name for registration, and EXPAND Business Solutions, Inc. will not be responsible if a domain name is not available for any reason. EXPAND Business Solutions, Inc. will also not be responsible for any infringement of third-party rights caused by its registration of a domain name for You. You waive any claims you may have against EXPAND Business Solutions, Inc. for, and hereby release EXPAND Business Solutions, Inc. of and from, any loss, damage, liability or expense arising out of, or relating to, the registration of such domain name in any online or offline network directories, membership lists or registration lists, or the release of the domain name from such directories or lists following the termination of services by EXPAND Business Solutions, Inc. for any reason. You will pay to EXPAND Business Solutions, Inc. all Service Fees incurred by You in registering or maintaining a domain name for You. You acknowledge that Your rights to any domain name registered by EXPAND Business Solutions, Inc. are subject to the Domain Registration Agreement and the ICANN Dispute Resolution Policy. You agree to be bound by the terms and policies affecting Your domain registration that are contained at http://www.EXPAND Business Solutions.com/expand-hosting-terms.html and the policies of the national DNS registration authorities to which You becomes subject upon registration of the domain name. Your inability to use a domain name shall not entitle You to a refund by EXPAND Business Solutions, Inc. of any fees paid with respect to the registration of such unusable domain name. The domain name for Your Web site shall be the property of You.

E. Because the Hosting Services permit You to electronically transmit or upload content directly to Your Web site, You shall be fully responsible for uploading all content to Your Web site and supplementing, modifying and updating Your Web site. You are also responsible for ensuring that Your Content and all aspects of Your Web site are compatible with the hardware and software used by EXPAND Business Solutions, Inc. to provide the Hosting Services, as the same may be changed by EXPAND Business Solutions, Inc. from time to time. Specifications for the hardware and software used by EXPAND Business Solutions, Inc. to provide the Hosting Services will be available on EXPAND Business Solutions, Inc.’s Web site. You shall periodically access EXPAND Business Solutions, Inc.’s Web site to determine if EXPAND Business Solutions, Inc. has made any changes thereto. EXPAND Business Solutions, Inc. 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 by EXPAND Business Solutions, Inc. to provide the Hosting Services.

F. Unless the applicable Service Description provides otherwise, You are solely responsible for making back-up copies of Your Web site and Your Content.

 

9. EXPAND Business Solutions, Inc. Intellectual Property

a. EXPAND Business Solutions, Inc. hereby grants to You a non-exclusive, non-transferable, royalty-free license, exercisable solely during the term of this Agreement, to use applicable EXPAND Business Solutions, Inc. Technology solely for the purpose of accessing and using the Services. You may not use the EXPAND Business Solutions, Inc. Technology for any purpose other than accessing and using the Services. Except for the rights expressly granted above, this Agreement does not transfer from EXPAND Business Solutions, Inc. to You any EXPAND Business Solutions, Inc. Technology, and all rights, titles and interests in and to the EXPAND Business Solutions, Inc. Technology shall remain solely with EXPAND Business Solutions, Inc. You shall not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any of the EXPAND Business Solutions, Inc. Technology.

b. EXPAND Business Solutions, Inc.’s trademarks, trade names, service marks, logos, other names and marks, and related product and service names, design marks and slogans are the sole and exclusive property of EXPAND Business Solutions, Inc. You may not use any of the foregoing in any advertising, publicity or in any other commercial manner without the prior written consent of EXPAND Business Solutions, Inc. EXPAND Business Solutions, Inc. shall maintain and control ownership of all Internet protocol numbers and addresses that may be assigned by EXPAND Business Solutions, Inc. to You. EXPAND Business Solutions, Inc. may, in its sole discretion, change or remove any and all such Internet protocol numbers and addresses.

c. Any feedback, data, answers, questions, comments, suggestions, ideas or the like which Customer sends to EXPAND Business Solutions, Inc. relating to the Services will be treated as being non-confidential and non-proprietary. EXPAND Business Solutions, Inc. may use, disclose or publish any ideas, concepts, know-how or techniques contained in such information for any purpose whatsoever.

 

10. Limited Warranty

A. EXPAND Business Solutions, Inc. represents and warrants to You that the Services will be performed (i) in a manner consistent with industry standards reasonably applicable to the performance thereof; (ii) at least at the same level of service as provided by EXPAND Business Solutions, Inc. generally to its other customers for the same services; and (iii) in compliance in all material respects with the applicable Service Descriptions. You will be deemed to have accepted such Services unless you notify EXPAND Business Solutions, Inc. within 30 days after performance of any Services of any breach of the foregoing warranties. Your sole and exclusive remedy, and EXPAND Business Solutions, Inc.’s sole obligation, for breach of the foregoing warranties shall be for EXPAND Business Solutions, Inc., at its option, to re-perform the defective Services at no cost to You, or, in the event of interruptions to the Services caused by a breach of the foregoing warranties, issue You a credit in an amount equal to the current monthly Service Fees pro-rated by the number of hours in which the Services have been interrupted.

B. The foregoing warranties shall not apply to performance issues or defects in the Services (i) caused by factors outside of EXPAND Business Solutions, Inc.’s reasonable control; (ii) that resulted from any actions or inactions of You or any third parties; or (iii) that resulted from Your equipment or any third-party equipment not within the sole control of EXPAND Business Solutions, Inc.

C. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 9, EXPAND Business Solutions, Inc. MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR ANY SOFTWARE PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND EXPAND BUSINESS SOLUTIONS, INC. HEREBY EXPRESSLY DISCLAIMS THE SAME. WITHOUT LIMITING THE FOREGOING, ANY THIRD-PARTY SOFTWARE PROVIDED TO YOU HERE-UNDER IS PROVIDED "AS IS" WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. EXPAND BUSINESS SOLUTIONS, INC. DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.

 

11. Limitation of Liability

a. IN NO EVENT WILL EXPAND BUSINESS SOLUTIONS, INC.’S LIABILITY IN CONNECTION WITH THE SERVICES, ANY SOFTWARE PROVIDED HEREUNDER OR ANY ORDER, WHETHER CAUSED BY FAILURE TO DELIVER, NON-PERFORMANCE, DEFECTS, BREACH OF WARRANTY OR OTHERWISE, EXCEED THE AGGREGATE SERVICE FEES PAID TO EXPAND BUSINESS SOLUTIONS, INC. BY YOU DURING THE 3-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.

b. EXPAND BUSINESS SOLUTIONS, INC. CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME, INTEGRITY OF DATA, INFORMATION OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET. EXPAND BUSINESS SOLUTIONS, INC. WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION OR INADVERTENT DISCLOSURE OF, DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED ON ITS SYSTEM.

c. EXCEPT AS EXPRESSLY PROVIDED BELOW, NEITHER PARTY SHALL BE LIABLE IN ANY WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF ANY ORDER, OR (EXCEPT AS PROVIDED IN SECTIONS 11 AND 12) FOR ANY CLAIM AGAINST THE OTHER PARTY BY A THIRD PARTY, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES.

d. The limitations contained in this Section 11 apply to all causes of action in the aggregate, whether based in contract, tort or any other legal theory (including strict liability), other than claims based on fraud or willful misconduct. The limitations contained in Section 11(c) shall not apply to liability arising on account of a party’s breach of Section 14 or to Your indemnification obligations under Section 12.

 

12. Indemnification of EXPAND Business Solutions, Inc.

You shall defend, indemnify and hold harmless EXPAND Business Solutions, Inc., its affiliates and their respective present, former and future officers, directors, employees and agents, and their respective heirs, legal representatives, successors and assigns (collectively the "EXPAND Business Solutions, Inc. Indemnitees"), from and against any and all losses, damages, costs, liabilities and expenses (including, without limitation, amounts paid in settlement and reasonable attorneys’ fees) which any of the EXPAND Business Solutions, Inc. Indemnitees may suffer, incur or sustain resulting from or arising out of (i) Your breach of any representation, warranty, or covenant contained in the Agreement, (ii) Your Content, Your Web site or any End User’s use of Your Content or Your Web site, (iii) violation by You or any of its officers, directors, employees or agents of the Acceptable Use Policy or any applicable law, (iv) claims or actions of third parties alleging misappropriation of trade secrets or infringement of patents, copyrights, trademarks or other intellectual property rights arising from the use, display or publication of Your domain names, Your Web site, Your Content, or the use of the Services in combination with hardware, software or content not provided by EXPAND Business Solutions, Inc., (v) claims or actions by third parties relating to or arising out of Your use of the Services, and (vi) any failure of Your Content or any aspect of Your Web site to be compatible with the hardware or software used by EXPAND Business Solutions, Inc. to provide the Services, including any damage to EXPAND Business Solutions, Inc.’s servers or other hardware caused thereby.

 

13. Indemnification of Customer

A. Subject to Section 11, EXPAND Business Solutions, Inc. shall, at its own expense, indemnify, defend and hold You harmless from any claim or suit alleging that the Services infringe any United States patent, copyright or trademark existing on the Effective Date, or that EXPAND Business Solutions, Inc. has knowingly misappropriated any trade secret or other intellectual property right of any other Person, including any losses, damages or expenses arising from any such claim or suit. You agree to cooperate with and assist EXPAND Business Solutions, Inc. in the defense or settlement of any such claim or suit. You shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation or assistance requested by EXPAND Business Solutions, Inc., but EXPAND Business Solutions, Inc. will not be liable for any costs or expenses incurred without its prior written authorization.

B. Promptly after receipt by You of a threat of any claim or suit, or a notice of the commencement or filing of any claim or suit, against which You may be indemnified hereunder, You shall give written notice thereof to EXPAND Business Solutions, Inc., provided that failure to give or delay in giving such notice to EXPAND Business Solutions, Inc. shall not relieve EXPAND Business Solutions, Inc. of any liability it may have to You hereunder, except to the extent that the defense of such claim or suit is prejudiced thereby. EXPAND Business Solutions, Inc. shall have sole control of the defense, and of all negotiations for settlement, of such claim or suit. Subject to the foregoing, You may participate in the defense of any such claim or suit at Your own expense.

C. If an injunction, decree or judgment is, or EXPAND Business Solutions, Inc. believes in its sole discretion is likely to be, entered providing that You may not use the Services as contemplated in this Agreement without violating the intellectual property rights of a third party, EXPAND Business Solutions, Inc. may, at its sole option and expense, either (i) procure for You the right to use the Services or affected part thereof as provided in this Agreement; (ii) replace the Services or affected part thereof with other non-infringing services or modify the Services or affected part thereof so as to be non-infringing; or (iii) terminate this Agreement upon written notice to You.

D. Notwithstanding Section 13(a), EXPAND Business Solutions, Inc. assumes no liability for infringement claims arising from (i) use of the Services with third-party products or services where the third-party products or services cause the infringement, (ii) any modification of the Services not authorized by EXPAND Business Solutions, Inc. in writing, (iii) Your Content, Your Web site or any content, data or information provided or supplied by an End User, or (iv) Your use of any third-party software provided hereunder. THE FOREGOING DEFENSE AND INDEMNIFICATION PROVISIONS STATE THE ENTIRE LIABILITY AND OBLIGATION OF EXPAND BUSINESS SOLUTIONS, INC., AND THE EXCLUSIVE REMEDY OF YOU, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT BY THE SERVICES PROVIDED HEREUNDER.

 

14. Confidentiality; Non-Solicitation

a. Each party will not, without the prior written consent of the other party, use or disclose to any Person any Proprietary Information of the other party disclosed or made available to it, except for use of such Proprietary Information as required in connection with the performance of its obligations or use of the Services hereunder. Subject to Section 13(b), each party will (i) treat the Proprietary Information of the other party as secret and confidential, (ii) limit access to the Proprietary Information of the party to those of its employees who require it in order to effectuate the purposes of this Agreement, and (iii) not disclose the Proprietary Information of the other party to any other Person without the prior written consent of the other party.

b. Notwithstanding Section 14(a), the following shall not be considered Proprietary Information: (i) any information that the receiving party can demonstrate by written documentation was within its legitimate possession prior to the time of disclosure by the disclosing party; (ii) any information that was in the public domain prior to disclosure by the disclosing party as evidenced by documents that were published prior to such disclosure; (iii) any information that, after disclosure by the disclosing party, comes into the public domain through no fault of the receiving party, (iv) any information that is disclosed to the receiving party without restriction by a third party who has legitimate possession thereof and the legal right to make such disclosure; or (v) any information that, two years after expiration or termination of this Agreement, does not constitute a trade secret under applicable law.

c. Each party acknowledges that disclosure of any aspect of the Proprietary Information of the other party shall immediately give rise to continuing irreparable injury to the other party inadequately compensable in damages at law, and, without prejudice to any other remedy available to the other party, shall entitle the other party to injunctive or other equitable relief. Upon expiration or termination of this Agreement for any reason, each party shall promptly return to the other party all Proprietary Information of the other party (including all copies thereof) in its possession or control.

d. During the term of this Agreement and for two years following expiration or termination of this Agreement, You will not, directly or indirectly, solicit or recruit the services of any employee of EXPAND Business Solutions, Inc. performing services under this Agreement, while such employee is employed by EXPAND Business Solutions, Inc. and for a period of one year after such employee has left the employment of EXPAND Business Solutions, Inc.

 

15. Optional Services

A. You must provide EXPAND Business Solutions, Inc. with any information, login identifications, passwords or other information or access to facilities that EXPAND Business Solutions, Inc. may reasonably require to provide the Optional Services EXPAND Business Solutions, Inc. will have no responsibility for any delays or increased costs or expenses associated with Your failure to provide any of such information. If You do not provide any such information or access requested by EXPAND Business Solutions, Inc. within thirty (30) days of EXPAND Business Solutions, Inc.’s request therefor, EXPAND Business Solutions, Inc. may terminate the Order and retain any Service Fees paid.

B. If You request that EXPAND Business Solutions, Inc. perform the Optional Services by a

particular deadline or that EXPAND Business Solutions, Inc. achieve some particular result or outcome, EXPAND Business Solutions, Inc. will use commercially reasonable best efforts to perform the Services by any such deadline and achieve the result requested by You; provided, however, that (i) EXPAND Business Solutions, Inc.’s ability to perform the Services is subject to Your provision of information and access as provided above and (ii) EXPAND Business Solutions, Inc. has no liability or obligation to complete the Services by any deadline or achieve any particular outcome of result.

C. If You wish to convey documents or files to EXPAND Business Solutions, Inc., You should deliver to EXPAND Business Solutions, Inc. a copy or duplicate of such documents or files and not the original copy. EXPAND Business Solutions, Inc. will not return to You any documents or files conveyed to EXPAND Business Solutions, Inc.

D. Some services offered by EXPAND Business Solutions, Inc., including but not limited to domain name parking, redirection, and cloaking, may include banner advertisements or HTML links placed in the content available through these Services. If you Order or use any of EXPAND Business Solutions, Inc.’s free Services, you agree to allow EXPAND Business Solutions, Inc. to place these banners and links in consideration of providing You free Services. In all cases, if You are paying for a Service that You Order from EXPAND Business Solutions, Inc., you will have the option to disable these embedded advertisements and links if such a feature is present.

 

16. Miscellaneous

a. Independent Contractor - EXPAND Business Solutions, Inc. and Customer are independent contractors and nothing contained in this Agreement places EXPAND Business Solutions, Inc. and Customer in the relationship of principal and agent, master and servant, partners or joint venturers. 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.

b. Governing Law; Jurisdiction - The validity and effect of this Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Washington, without regard to its conflicts of laws principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. ANY SUIT, ACTION OR PROCEEDING CONCERNING THIS AGREEMENT MUST BE BROUGHT IN A WASHINGTON STATE OR FEDERAL COURT LOCATED IN CLARK COUNTY, WASHINGTON, AND EACH OF THE PARTIES HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS (AND OF THE APPROPRIATE APPELLATE COURTS THEREFROM) IN ANY SUCH SUIT, ACTION OR PROCEEDING AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT ANY SUCH SUIT, ACTION OR PROCEEDING WHICH IS BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

c. Headings - The headings herein are for convenience only and are not part of this Agreement.

d. Entire Agreement; Amendments - This Agreement, including documents incorporated herein by reference, supersedes all prior discussions, negotiations and agreements between the parties with respect to the subject matter hereof, and this Agreement constitutes the sole and entire agreement between the parties with respect to the matters covered hereby. In case of a conflict between this Agreement and any purchase order, service order, work order, confirmation, correspondence or other communication of Customer or EXPAND Business Solutions, Inc., the terms and conditions of this Agreement shall control. No additional terms or conditions relating to the subject matter of this Agreement shall be effective unless approved in writing by any authorized representative of Customer and EXPAND Business Solutions, Inc. This Agreement may not be modified or amended except by another agreement in writing executed by the parties hereto; provided, however, that these Terms of Service may be modified from time to time by EXPAND Business Solutions, Inc. in its sole discretion, which modifications will be effective upon posting to EXPAND Business Solutions, Inc.'s Web site.

e. Severability - All rights and restrictions contained in this Agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid or unenforceable. If any provision or portion of any provision of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect.

f. Notices - All notices and demands required or contemplated hereunder by one party to the other shall be in writing and shall be deemed to have been duly made and given upon date of delivery if delivered in person or by an overnight delivery or postal service, upon receipt if delivered by facsimile the receipt of which is confirmed by the recipient, or upon the expiration of five days after the date of posting if mailed by certified mail, postage prepaid, to the addresses or facsimile numbers set forth below the parties’ signatures. Either party may change its address or facsimile number for purposes of this Agreement by notice in writing to the other party as provided herein. Shared Customers may give, and be given, notice by electronic means in certain circumstances as provided in the Service Description. Notices to EXPAND Business Solutions, Inc. can be sent to: EXPAND Business Solutions, Inc. 11654 Hidden Valley Blvd., Sandy, UT 84092 or ed@EXPANDBusinessSolutions.com.

g. Waiver - No failure or delay by any party hereto to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by any party preclude any other or further exercise thereof or the exercise of any other right or remedy. No express waiver or assent by any party hereto to any breach of or default in any term or condition of this Agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition hereof.

h. Assignment; Successors - Customer may not assign or transfer this Agreement, or any of its rights or obligations hereunder, without the prior written consent of EXPAND Business Solutions, Inc. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. EXPAND Business Solutions, Inc. may assign its rights and obligations under this Agreement, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without the consent of Customer. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.

i. Limitation of Actions - No action, regardless of form, arising by reason of or in connection with this Agreement may be brought by either party more than two years after the cause of action has arisen.

j. Counterparts - If this Agreement is signed manually, it may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. If this Agreement is signed electronically, EXPAND Business Solutions, Inc.’s records of such execution shall be presumed accurate unless proven otherwise.

k. Force Majeure - Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party’s reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for such party to perform its obligations hereunder.

l. No Third-Party Beneficiaries - Except as otherwise expressly provided in this Agreement, nothing in this Agreement is intended, nor shall anything herein be construed to confer any rights, legal or equitable, in any Person other than the parties hereto and their respective successors and permitted assigns.

m. Government Regulations - Customer may not export, re-export, transfer or make available, whether directly or indirectly, any regulated item or information to anyone outside the United States in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the United States government and any country or organization of nations within whose jurisdiction Customer operates or does business.

n. Marketing - Customer agrees that during the term of this Agreement EXPAND Business Solutions, Inc. may publicly refer to Customer, orally and in writing, as a customer of EXPAND Business Solutions, Inc. Any other public reference to Customer by EXPAND Business Solutions, Inc. requires the written consent of Customer.

o. Opt In - Customer hereby grants permission to EXPAND Business Solutions, Inc. to send communications to Customer via telephone, postal mail, e-mail, facsimile or by other means. These communications may include but are not limited to invoices, receipts, renewal notices, service announcements, outage notices, advertisements, special offers, newsletters or any other information that EXPAND Business Solutions, Inc. may deem, at EXPAND Business Solutions, Inc.'s sole discretion, to be informative or important. Customer hereby opts-in and provides explicit consent for the use of their contact information including but not limited to e-mail address, postal address and telephone number for these communications. As a courtesy, EXPAND Business Solutions, Inc. may provide opt-out instructions on certain communications to allow Customer to inform EXPAND Business Solutions, Inc. of Customer's communication preferences. EXPAND Business Solutions, Inc. will attempt to honor the communications preferences indicated by Customer but is under no obligation to do so nor does EXPAND Business Solutions, Inc. waive any privileges under this provision by receiving such communication preferences. EXPAND Business Solutions, Inc. does NOT release Customer information to any third-party except as required for the purchase of certain third-party products or services.

p. Domain Registration Agreement - By purchasing/registering a domain name with EXPAND Business Solutions, Inc. you are also agreeing to the terms of theEXPAND Business Solutions, Inc. Registration Agreement.

q. Domain Registrar(s) - By purchasing, registering, renewing or transferring a domain name with EXPAND Business Solutions, Inc. you are also agreeing that EXPAND Business Solutions, Inc. may transfer or move your domain to another Registrar at any time, including during the renewal process, which may cause a sixty day transfer lock from the date of the renewal or transfer. You retain ownership, access and control of the domain, regardless of which Registrar EXPAND Business Solutions, Inc. uses to register, renew or transfer your domain.