These terms and conditions (the “Agreement”) in the absence of a signed Master Service Agreement between echoMountain LLC and a customer, governs the purchase, use and provision of all services, including dedicated hosting services, shared hosting services, custom hosting services and professional services, (collectively, the "Services") and describes the terms and conditions that apply to the use and provision of the Services.

By using our services, you acknowledge that you have read this Agreement and agree to be bound by the terms and conditions contained herein as well as all policies and guidelines attached hereto. Provider reserves the right to change or modify any policy or guideline at any time and from time to time in its sole discretion, and to determine whether and when any such changes apply to both existing or future Customers. Any changes or modification will be effective thirty (30) days after notification to the Customer of the revisions and providing Customer with a copy of the revisions. Provider will notify Customer of such changes or modifications to referenced policies and guidelines in writing delivered by fax or e-mail to Customer.

If you do not agree to the terms of this Agreement, do not use the Services. If you do not agree to the terms of any modification, do not continue to use the Services and notify Provider of your termination of this Agreement in the manner described in Section 1.2 below, provided, however that you will remain liable for the charges for the Services to the extent described in Section 1 below.

Provider will, pursuant to the terms and conditions of this Agreement, provide the Services as described on each Sales Order or provided Services in the abscense of a Sales Order. To the extent required to perform the Services, Provider shall be solely responsible for establishing and maintaining the integration of the Services with the System, Provider’s network, the internet and other necessary communication networks or infrastructures. Provider shall provide all necessary digital transmission connections and links, all electrical and physical requirements.  Provider shall provide the Services using standards, equipment and software that are consistent with industry standards and best practices.  The “System” shall mean individually each, and collectively all, the servers, equipment, hardware, security protocols, fire walls, internet connections, software, communications support structure, and related materials and facilities, and to otherwise make the “System” accessible on demand by Users over the internet, provided, however that the “System” shall not include, and Provider shall not be responsible for the provision of, connectivity, systems, equipment, hardware or  software needed for Users to access the Customer Content, except as described in an attached Sales Order.

1.             Term and Payment for Services

1.1           Commencement Date and Term
This Agreement shall be for an "Initial Term” as specified in the Sales Order and shall renew thereafter  each year for an additional  one (1) year term, the “Renewal Term”, unless either party notifies the other in writing of its decision not to renew for a Renewal Term, at least ninety (90) days prior to the beginning of the Renewal Term.  You must provide Provider with your notice not to renew by sending an email to billing@echomountain.com. Any notice of non-renewal will be effective upon your sending such e-mail.  The Initial Term and any Renewal Terms shall collectively be referred to as the “Term.”

1.2           Termination Policy
Except as provided in the “Service Level Agreement (SLA)” and in this Section 1.2, Customer may not terminate this Agreement.  If Customer terminates this Agreement in accordance with this Section 1.2 or the SLA, Provider shall refund to Customer any prepaid fees paid in advance of such termination for which Services have not been delivered, less any Termination Payment (as described below) due from Customer to Provider, as further described in this Section 1.2.

(a) Notwithstanding anything to the contrary in this Agreement or in any Sales Order, Customer may terminate an individual Sales Order hereunder without having to make a Termination Payment (as defined below) if Provider materially breaches a provision of this Agreement or such Schedule related to the provision of the Services (provided, that no failure in availability or uptime under an individual Sales Order shall be considered a material breach except to the extent that such Sales Order provides Customer with a termination right triggered by such failure in availability or uptime) under the applicable Sales Order and fails to cure such breach within thirty (30) days after Customer provides Provider with written notice of such breach (such termination, a “Sales Order Termination for Cause”).  Customer may also terminate any individual Sales Order hereunder without having to make a Termination Payment (as defined below) if such Sales Order provides for the provision of Services rendered unable to be received by Customer as a result of Customer’s Sales Order Termination for Cause of another Sales Order.

(b) Customer may terminate this Agreement or any individual Sales Order hereunder for convenience or for no reason by (i) providing ninety (90) days written notice to Provider of Customer’s intent to terminate the Agreement or any individual Sales Order and (ii) paying all non-recurring and monthly recurring charges remaining on the Initial Term or Renewal Term applicable to the Services being terminated (the “Termination Payment”).  The parties agree that such Termination Payment is an agreed-upon amount intended to represent liquidated damages to Provider resulting from such termination, and is not a fee, fine, charge or penalty.  No such termination shall be effective, and Customer shall continue to incur fees for the Services, whether delivered or not, until Customer has paid Provider the applicable Termination Payment, except to the extent that Customer’s prepayments for then-undelivered Services exceed the Termination Payment.  Provider shall be entitled to retain an amount equal to the Termination Payment from any payments due Customer for any reason, including refunds for prepayments, as described in this Section.  Customer shall not be relieved of its obligation to pay for any Services undeliverable as a result or Customer’s termination of other Sales Orders until Customer has terminated the Sales Orders for such undeliverable Services in accordance with the terms of this Section, including paying any applicable Termination Payment.  Notwithstanding the foregoing, if you terminate this Agreement other than as explicitly authorized under this Section 1.2 or the SLA, including if you notify Provider of your intent to terminate the Agreement or any Services without paying the Termination Payment, if applicable, you will be liable to Provider and owe to Provider the fees for Services that would have been due to Provider had no termination occurred, until the end of the then-current Initial Term or Renewal Term.

Except as provided in this Section 1.2 or otherwise in this Agreement, Provider may not terminate this Agreement or any applicable Sales Order.  Provider may exercise all such termination rights in whole or in part.

Except as described in this Section 1.2 and the SLA, Customer may terminate an applicable Sales Order to this Agreement only as is described in the specific Sales Order.  If Customer terminates a Sales Order to this Agreement, Customer shall remain liable under all other Sales Orders except to the extent that such Sales Orders are terminated in accordance with their terms or the terms of this Agreement.

In the event that no Sales Order between the parties is in effect and no Services are being provided under this Agreement, the parties may choose to agree to terminate this Agreement without any liability of either party hereunder.

1.3           Liability and Obligations on Termination
Any termination of this Agreement shall not relieve Customer of any obligations to pay undisputed fees and costs accrued prior to the termination date.

1.4           Charges
Customer agrees to pay for all undisputed charges attributable to the provision of the Services at the rates and for the fees described in the applicable Sales Order, which shall be exclusive of any applicable taxes. Customer shall be responsible for the payment of all federal, state, and local sales, use, value added, excise, duty and any other taxes assessed with respect to the Services, other than taxes based on Provider's net income.

1.5           Payment
All charges for Services must be paid in advance according to the then agreed upon price applicable to the Services.  Provider will send a monthly invoice to you in advance of the period during which the Services are provided. Provider may also send periodic invoices to you for any applicable supplemental charges associated with your use of the Services. You agree to pay to Provider the undisputed amount indicated in each invoice by the due date, net thirty (30) days as reflected on the invoice. If you fail to pay any undisputed fees and taxes by the applicable due date for invoice payments, late charges of the lesser of one and a half percent (1.5%) per month or the maximum allowable under applicable law shall also become payable by you to Provider, until paid.  In addition, your failure to fully pay any undisputed fees and taxes within sixty (60) days after the applicable due date will be deemed a material breach of the Agreement, justifying Provider’s suspension of its performance of the Services and/or termination of the Agreement for cause.  You are responsible for any fees associated with reinstated Services.  Any such termination would not relieve you from paying past due fees plus interest.  In the event of collection enforcement or legal action to recover any undisputed payments owed, you will be liable for any costs associated with such collection, including, without limitation, reasonable attorneys’ fees, court costs and collection agency fees.

2.             Use of Services

2.1           Applicable Policies and Guidelines
The Acceptable Use Policy governs the general policies and procedures for use of the Services. The Acceptable Use Policy is attached hereto  and may be updated from time-to-time.  Provider may terminate its provision of the Services and/or this Agreement for any violation of the Acceptable Use Policy or this Agreement that remains uncured thirty (30) days after Provider sends you a written notice of such violation.  Such termination will be considered a for-cause termination.

2.2           Material and Product Requirements
You must ensure that all Customer Content placed on the System is in a condition that is "server-ready," which is in a form requiring no additional manipulation by Provider. Provider will make no effort to validate any of this information for content, correctness or usability. In the event that the Customer Content is not "server-ready", Provider has the option at any time to reject it. Provider will notify you of its refusal of the Customer Content and afford you the opportunity to amend or modify it to satisfy the reasonable requirements of Provider. Use of the Services requires a certain level of knowledge in the use of internet languages, protocols and software. This level of knowledge varies depending on the anticipated use of the Customer Content. You must have the necessary knowledge to create and maintain a web site. It is not Provider's responsibility to provide this knowledge or Customer support outside of the Services agreed to by you and Provider.

2.3           Domain Names
As part of the Services, you will provide Provider with a registered domain name or names or Provider will, at your request, register such domain name(s) selected by you, provided that such domain name is available for registration and does not violate any Network Solutions' or other registration Services' policies, or any law or regulation. You agree to promptly reimburse Provider for any fees paid by Provider to Network Solutions or other registration Services with respect to the registration and maintenance of such domain name(s). In the event of any dispute or cause of action arising out of or related to your domain name used in connection with the Services, upon your request Provider will attempt to register with Network Solutions or other registrar an alternative domain name chosen by you. You agree to be bound by the terms of Network Solutions' then current domain name policy and/or the policies of the national DNS registration authorities to which you become subject upon registration of your domain name. The inability to use a domain name shall not entitle you to a refund by Provider of any fees paid with respect to the registration of such unusable domain name.

3.             Intellectual Property Rights

3.1           Your License Grant to Provider
You hereby grant to Provider a non-exclusive, worldwide, non-transferable and royalty-free license for the term of this Agreement to access, transmit, use, copy, modify and distribute over the internet the Customer Content and any related materials and data, only to the extent necessary for Provider to provide the Services to you under this Agreement.  Except as otherwise required herein, upon termination of this Agreement, Provider shall delete all such Customer Content.

3.2           Your Warranties and Representations to Provider
You warrant, represent, and covenant to Provider that (a)  you possess the legal right and ability to enter into this Agreement; (b) you will use the Services only for lawful purposes and in accordance with this Agreement and all applicable policies and guidelines; (c) you will be financially responsible for the use of your account; (d) you have acquired or will acquire all authorization(s) necessary for hypertext links to third-party Web sites or other content; (e) you have verified or will verify the accuracy of materials distributed or made available for distribution via the Services, including, without limitation, the Customer Content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted, and (f) the Customer Content does not and will not infringe or violate the intellectual property rights of any third party, including patent, copyright, trade secret, trademark, contractual rights and other intellectual property rights protected under the laws of the United States, or violate any applicable law, regulation or ordinance.

.3             Customer and Provider Materials and Intellectual Property

(a) All materials, including but not limited to any computer software (in object code and source code form), data or information developed or provided by Customer pursuant to this Agreement or purchased by Provider by Customer and paid for by Customer, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights inherent therein and appurtenant thereto shall remain the sole and exclusive property of Customer (the “Customer IP”).

(b) All materials, including but not limited to the Customer Content, any computer software (in object code and source code form), data or information developed or provided by Provider or its suppliers or agents pursuant to this Agreement, and any know-how, methodologies, equipment, or processes used by Provider to provide the Services to you, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights inherent therein and appurtenant thereto shall remain the sole and exclusive property of Provider, its Users or its suppliers. Provider shall also maintain and control ownership of all Internet protocol ("IP") numbers and addresses that may be assigned to you by Provider. Provider reserves, in its sole discretion, the right to change or remove any and all such IP numbers and addresses.

(c) With respect to any Provider logos and/or hypertext link logos provided for use with the Services, Customer is granted a non-assignable, non-exclusive, royalty free license solely to use the logos and/or link logo as a hypertext link icon to allow users to link from Customer’s web page to the Provider web pages, based on the following terms and conditions:

1. Regarding Provider's logos and link logo marks (the “Marks”), during and after the term of this Agreement, Customer shall not, in any way, contest, or help others to contest, such ownership or the validity of any registrations or rights of Provider now owned or obtained relating to the Marks.

1. Customer shall not use any names, marks, terms, graphics, or other materials on its Web page or site that are likely to cause confusion with or dilute the distinctiveness of either of the Marks or to damage the reputation or commercial image of Provider or any of its products.

1. Provider, in its sole discretion, may terminate this license for the Marks immediately for any reason. Upon termination of this license, Customer shall immediately cease all further use of the Marks, or any other similar mark, name or logo.

3.4           Proprietary or Confidential Information
The parties agree to hold each other’s Proprietary or Confidential Information in strict confidence in perpetuity. The parties agree not to make each other’s Proprietary or Confidential Information available in any form to any third party or to use each other’s Proprietary or Confidential Information for any purpose other than the implementation of, and as specified in, this Agreement.  Each party agrees to take all reasonable steps to ensure that Proprietary or Confidential Information of either party is not disclosed or distributed by its employees, agents, subcontractors or consultants in violation of the provisions of this Agreement.  “Proprietary or Confidential Information” shall mean, with respect to a party hereto, any and all information or material which (i) gives that party some competitive business advantage or the opportunity of obtaining such advantage or the disclosure of which could be detrimental to the interests of that party; (ii) is either (A) marked Confidential, Restricted, or Proprietary Information or other similar marking, (B) known by the parties to be considered confidential and proprietary or (C) from all the relevant circumstances should reasonably be assumed to be confidential and proprietary or (iii) relates to the pricing, terms, conditions, policies or other aspects of the business relationship between Customer and Provider, whether described in this Agreement or not.  Proprietary or Confidential Information includes, but is not limited to, the Provider IP, Customer IP, the Customer Data, the Customer Content, the business plans, methods and strategies of either party, and any non-public information related to the operation of the business of either party, including know-how, techniques, development plans, client names, price lists, pricing policies and financial information.  Neither party shall have any obligation with respect to Proprietary or Confidential Information which: (i) is or becomes generally known to the public by any means other than a breach of the obligations of a receiving party; (ii) was previously known to the receiving party or rightly received by the receiving party from a third party; (iii) is independently developed by the receiving party without reference to information derived from the other party; (iv) is subject to disclosure under court order or other lawful process or (v) the disclosing party explicitly and in writing authorizes the receiving party to distribute.  Nothing in this Section shall be interpreted to prevent Customer from sharing, distributing, publishing or other disseminating any price list, services summary or other document provided by Provider and describing the services Provider provides, providing that Provider has explicitly authorized such dissemination in writing and Customer complies with any restrictions, limitations or other conditions described in the written authorization.  Neither party shall have any interest in, nor any right to use (including, without limitation, any use resulting in disclosure to any third party) the other party’s Proprietary or Confidential Information except as specifically provided for by this Agreement or as otherwise permitted and specified by separate written agreement executed by both parties hereto.

3.5           Customer Data
All of Customer’s data, records, client lists, client specific or client generated data and other information to which Provider has access, is transmitted to, by, or through the System or otherwise provided to Provider under this Agreement (the “Customer Data”), shall be and remain the sole and exclusive property of Customer and/or its clients and Customer and/or its clients shall retain exclusive rights and ownership thereto, subject to the licenses granted herein.  The Customer Data shall not be used by Provider for any purpose other than as required under this Agreement, nor shall the Customer Data or any part of the Customer Data be disclosed, sold, assigned, leased or otherwise disposed of to third parties by Provider or commercially exploited or otherwise used by or on behalf of Provider, its officers, directors, employees, or agents.

4.             Enforcement

4.1           Investigation of Violations
Provider may investigate any reported violation of this Agreement, its policies or any complaints and take any action that it deems appropriate and reasonable under the circumstance to protect its systems, facilities, customers and/or third parties; provided, however, Provider will not terminate Customer’s Service without providing the notice and cure period as set forth in Section 2.1. Provider will not access or review the contents of any e-mail or similar stored electronic communications except as required or permitted by this Agreement, applicable law or legal process.

4.2           Actions
Provider reserves the right and shall exercise its reasonable discretion to restrict or remove from its servers any Customer Content that violates this Agreement or related policies or guidelines, or is otherwise objectionable or potentially infringing on any third party's rights or in potentially violation of any laws. In the event of becoming aware of any possible violation by you of this Agreement, any related policies or guidelines, third party rights or laws, Provider may take immediate corrective action, including, but not limited to, (a) issuing warnings, (b) suspending the Service, (c) restricting or prohibiting any and all uses of content hosted on the System, and/or (d) disabling or removing any hypertext links to third-party Web sites, any of the Customer Content distributed or made available for distribution via the Services which, in Provider's sole discretion, may violate or infringe any law or third-party rights or which otherwise exposes or potentially exposes Provider to civil or criminal liability or public ridicule. In the event of Provider’s actions under (b) – (d) above, Provider shall use its best efforts to notify Customer as soon as is practicable of such action, and shall allow Customer a reasonable period to cure the violations, when possible, provided however that such obligation to notify will not alter Provider’s right under this Section to immediately use corrective action, including suspension of the Services.  Customer’s failure to cure such violation within a reasonable time, if possible, and Customer’s incurable violation shall be considered material breaches of this Agreement and grounds for for-cause termination of this Agreement.  The above stated rights of action, however, do not obligate Provider to monitor or exert editorial control over the information made available for distribution via the Services. In the event Provider reasonably takes such corrective action due to such possible violation, Provider shall not be obligated to refund to you any fees paid in advance of such corrective action.

4.3           Disclosure Rights
To comply with applicable laws and lawful governmental requests, to protect Provider's systems and customers, or to ensure the integrity and operation of Provider's business and systems, Provider may access and disclose any information it considers reasonably necessary, including, without limitation, user profile information (i.e., name, e-mail address, etc.), IP addressing and traffic information, usage history, and content residing on the System. Provider also reserves the right to report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. To the extent any inconsistency exists between any terms of Provider's Usage Guideline’s and Provider's right to disclose under this section, Provider's right to disclose under this section will control.  Notwithstanding the foregoing, Provider acknowledges that Customer may be receiving and transmitting confidential information through its web site and e-mail systems and agrees that it shall use reasonable efforts to protect the security of that information and exercise due care in accessing and disclosing that information.  In the event Provider intends to or does make any disclosures under this section, Provider will promptly provide Customer with notice of the date of the disclosure, what information was or would be disclosed and to whom it was or would be disclosed.  Provider will use reasonable efforts to provider Customer with such notice prior to such disclosure.

5.             Disclaimed Warranties
Except to the extent that Provider is obligated to perform specific Services as described in this Agreement or an applicable Sales Order, you acknowledge and agree that Provider exercises no control over, and accepts no responsibility for, the content of the information passing through the System, network hubs and points of presence, or the internet.  Except to the extent that Provider breaches its obligations to perform Services as described in this Agreement or an applicable Sales Order and such breach results in direct damages otherwise recoverable under this Agreement, in no event shall Provider or it suppliers have any liability for unauthorized access to, or alteration, theft or destruction of, information distributed or made available for distribution via the Services through fraudulent means, actions or devices of a third party. 

EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT OR ANY INDIVIDUAL SALES ORDER, ALL SERVICES PERFORMED HEREUNDER ARE PERFORMED "AS IS" AND NEITHER PARTY MAKES, AND EACH HEREBY DISCLAIMS AND WAIVES ALL RELIANCE ON, ANY REPRESENTATIONS OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE.

6.             Limitation and Exclusion of Liability

6.1           Limitations
Except to the extent described in Section 6.1.1 below, neither Provider nor Customer shall have liability for consequential, exemplary, special, incidental or punitive damages (including lost profits, goodwill and anticipated sales) even if a party has been advised of the possibility of such damages.  In any event and except to the extent described in Section 6.1.1 below, the liability of either party to the other for any reason and upon any cause of action, with respect to the Services provided under any specific Sales Order, shall be limited to two (2) times the most recent monthly recurring charges (“MRCs”) actually paid by Customer to Provider under this specific Agreement.  This limitation applies to all causes of action in the aggregate, including, without limitation, to breach of contract, breach of warranty, negligence, strict liability, misrepresentations, and other torts. The fees for the Services set by Provider hereunder have been and will continue to be based upon this allocation of risk.  To the extent that Service Level Credits are described in this Agreement as being the sole and exclusive remedy for a particular failure, breach or unavailability, no additional recovery or liability shall be available.

Should the Agreement expire or be terminated for any reason, Provider will not be liable to Customer because of such expiration or termination for compensation, reimbursement, or damages on account of loss of prospective profits, anticipated sales, goodwill or on account of expenditures, investments, leases or commitments in connection with your business, or for any other reason whatsoever flowing from such termination or expiration, except that Provider shall be liable to Customer, subject to the other limitations described in this Agreement, for direct damages to Customer resulting from Provider’s breaches of its obligations under this Agreement or any individual Sales Order.

6.1.1        Exceptions to the Limitation of Liability
Notwithstanding anything to the contrary in Section 6.1 or elsewhere in this Agreement, the limitation of liability described in Section 6.1 shall not apply to either party’s breaches of Section 3.4, the parties’ respective obligations under Article 7 or Customer’s failure to pay any amounts due hereunder.

6.2          Errors and Interruptions of Service

Provider shall not be liable for any delay or failure to perform its obligations under this Agreement, where such delay or failure results from any act of God or other cause beyond its reasonable control. 

7.             Indemnification  
You hereby release, and agree to indemnify, pay all the costs of and hold harmless, Provider and its affiliates against any and all claims, actions, proceedings, suits, liabilities, damages, settlements, penalties, fines, costs, losses or expenses (including, without limitation, reasonable attorneys' fees and other litigation expenses) incurred by Provider arising out of or relating to (a) your violation or breach of any term, condition, representation or warranty of this Agreement, or any applicable policy or guideline; (b) your improper or illegal use of the Services; (c) your violation, alleged violation, or misappropriation of any intellectual property right, trademark, copyright or trade secrets or non-proprietary right of a third party (including, without limitation, defamation, libel, violation of privacy or publicity) or (d) actions by third parties, whether Users or not, related to the Customer Content.

Provider hereby releases and holds harmless, and agrees to indemnify you and your affiliates against any and all claims, actions, proceedings, suits, liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees and other litigation expenses) incurred by you arising out of or relating to (a) Provider’s violation or breach of any term, condition, representation or warranty of this Agreement, or any applicable policy or guideline; (b) Provider’s improper or illegal use of the Services; or (c) Provider’s violation, alleged violation, or misappropriation of any trademark, copyright or trade secrets or non-proprietary right of a third party (including, without limitation, defamation, libel, violation of privacy or publicity).

8.             Miscellaneous Provisions

8.1           Entire Agreement
This Agreement, in conjunction with any attached Sales Orders, policies and guidelines constitutes the entire agreement between you and Provider with respect to the subject matter hereof and there are no representations, understandings or agreements which are not fully expressed in this Agreement and the related policies and guidelines.  If there is a conflict between the terms of this Agreement and any order form, other attachment, Sales Order or addendum, the terms of this Agreement shall control.
8.2           No Fiduciary Relationship; No Third-Party Beneficiaries
Provider is not the agent, fiduciary, trustee or other representative of you. Except as provided in Article 7, nothing expressed or mentioned in or implied from this Agreement is intended or shall be construed to give to any person other than the parties hereto any legal or equitable right, remedy or claim under or in respect to this Agreement. This Agreement and all of the representations, warranties, covenants, conditions and provisions hereof are intended to be and are for the sole and exclusive benefit of the parties hereto.
8.3           Amendments
Except as expressly provided in this Agreement, no amendment, change, waiver, or discharge hereof shall be valid unless in writing and signed by the parties. Any purported oral modification or amendment of this Agreement in derogation of the foregoing shall be without any effect.
 
8.4           Choice of Law and Forum
This Agreement, including the addendum, will be governed by the laws of the United States and the state of Illinois, without reference to rules governing choice of laws.  Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial  Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court.

8.5           Compliance With Laws

Each party shall at all times comply with all applicable laws and regulations and shall indemnify and save the other party harmless from the failure to so comply. The parties agree that neither shall have to perform any obligations set forth in this Agreement if such performance would violate any present or future law, regulation or policy of any applicable government.

8.6           Non-Assignment

Neither party may assign this Agreement or any right or obligation hereunder by operation of law or otherwise, without the other party’s prior written consent, provided that Provider may assign this Agreement in connection with a merger, acquisition, sale, divestiture or other business reorganization. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns.

8.7           No Waiver

A party’s failure to enforce the strict performance of any provision of this Agreement will not constitute a waiver of that party’s right to subsequently enforce such provision or any other provisions hereunder or there under. Neither party may waive any right hereunder except expressly and in writing. Any other purported waiver of any such right shall be without any effect.

8.8           Severability

Should any term or provision hereof be deemed invalid, void or unenforceable either in its entirety or in a particular application, the remainder of this Agreement shall nonetheless remain in full force and effect and, if the subject term or provision is deemed to be invalid, void or unenforceable only with respect to a particular application, such term or provision shall remain in full force and effect with respect to all other applications.

8.9           Headings

The section headings used herein are for reference and convenience only and shall not enter into the interpretation hereof.

8.10           Survival

All provisions of this Agreement relating to warranties, intellectual property rights, limitation and exclusion of liability, indemnification obligations and payment obligations shall survive the termination or expiration hereof and thereof.

8.11           Notice

Any notices or demands in connection with any schedule shall be give in writing by regular or certified mail at the address indicated in the Schedule, or to any address specified by Provider.

8.12           Disputes

In the event of any dispute, claim, question, or disagreement arising from or relating to this agreement or the breach thereof, the parties hereto shall use their best efforts to settle the dispute, claim, question, or disagreement. To this effect, they shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. If they do not reach such solution within a period of 60 days, then, upon notice by either party to the other, all disputes, claims, questions, or differences shall be finally settled by arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules.

8.13           Costs

In the event of litigation or arbitration of any dispute arising hereunder, except as is otherwise provided in this Agreement, each party shall bear its own costs, including attorney’s fees.

Burstable Bandwidth

Burstable bandwidth utilization is billed in 0.01 Mbps (or 10 Kbps) increments at the 95th percentile. Traffic samples will be collected on your connection to the internet 24x7x365.  echoMountain polls data every 5 minutes.  Every 5 minutes, our polling system checks to see how much data has passed since the previous measurement, then assigns two data rate values (called samples – one Send and one Receive) to each 5-minute span.  At the end of every month, all send samples are ranked by data rate, and likewise for Receive.  There are 8,640 samples in a 30 day month for each of these two categories.  The number of samples in the month determines which two samples have been ranked at the 95th percentile position.  The data rate values of the two samples are compared and the higher one serves as the month’s basis for your usage-based billing.

Real-time bandwidth charts are provided for each customer using Router Traffic Grapher (RTG), a tool to monitor the traffic load on network links. RTG generates HTML pages which provide a live visual representation of your traffic.  A sample report

Real Time Traffic Report for Customer 16241

Period: [08/01/2005 00:00 to 08/31/2005 23:59]

                         RateIn   RateOut    MaxIn   MaxOut   95% In  95% Out

Connection                 Mbps      Mbps     Mbps     Mbps     Mbps     Mbps

-------------------------------------------------------------------------------

at-1/2/0.104 core1.abc     0.01      0.01     0.01     0.01     0.01     0.01

at-1/2/0.109 core1.xyz     0.11      0.16     0.43     0.50     0.33     0.45

This client would be billed for 0.45 Mbps at the 95th percentile, since it is the maximum for all inbound and outbound traffic, the resulting service charges for burstable bandwidth would be  0.45 Mbps for the month of August 2005.

Your Services may include a committed amount of burstable bandwidth. If you use any bandwidth in excess of the committed amount of megabits per second (Mbps), Provider may, in its sole discretion, assess you with additional charges as a result of this excess usage which charges are set forth on the Sales Order.  Provider will provide near-real-time reporting services to Customer upon request  in order for Customer to monitors its usage of the Services and any usage in excess of the amounts provided, provided, however, that Customer will be responsible for all additional usage charges as incurred.

Service Level

Provider will have no obligation under this Agreement to correct any bugs, defects or errors in any Customer Content.  Provider agrees to provide reasonable technical support (collectively “Professional Services” to Customer in the form of telephone consulting and "e-mail" to Customer during Provider's normal business hours (which are at least 8:00 a.m. to 6:00 p.m. CST) and at Provider's standard pricing. Provider will have Service personnel available 24 hours per day, 7 days per week, 365 days per year to respond to and promptly remedy Service disruptions.
 
Provider shall use commercially reasonable efforts to maintain the security of the System. Provider shall keep the servers hosting Customer’s Content in locked and secure cages, with access restricted to those employees of Provider who are responsible for the security and maintenance of the servers, and such other persons as may be authorized by Customer in writing to access the servers. Provider, using commercially reasonable efforts, shall provide adequate firewall and other software and hardware protection in order to secure the Customer Content and other proprietary information stored on the servers from unauthorized access by third parties.  Provider shall notify Customer immediately and in any event within one (1) hour, of any known security breach or hole. Provider will install all appropriate security-related patches for its System and servers hosting Customer’s Content and associated software within twenty-four hours of their public release. Upon the written request of Customer, Provider will take the servers off-line upon discovery of a security flaw or security breach.

Interruption of Service
You hereby acknowledge and agree that, except as set forth below or in the Agreement, Provider and its suppliers will not be liable for any temporary delay, outages or interruptions of the Services.  Provider shall not be liable for any delay or failure to perform its obligations under this Agreement, where such delay or failure results from any act of God or other cause beyond its reasonable control. 

Service Level Agreements
Provider’s Service Level Agreements (SLAs) provide certain Customer’s with certain rights and remedies regarding the performance of our network.  The network SLAs apply only to customers receiving Provider’s data center services.

Network Access SLA
For the purposes of this SLA, the following terms have the meanings set forth below:

“Network Access” means Provider owned and operated Internet Protocol (IP) routing infrastructure consisting solely of Provider measurement devices at selected points of presence (“Selected POPs”) at selected Internet peering points.

“Data Center Services” consists solely of the services within the “Data Center” service class as denoted in the sales order or subsequent change orders and paid by Customer for the affected Service and excludes all other fees which might be charged to Customer, including, by way of example and not limitation, set-up fees, fees for local loop, space rental fees, charges for additional services such as professional services, incremental bandwidth usage, electricity, extra IP addresses, RAM, hard drives beyond that which is available without additional charge under Provider’s standard rates, hourly support charges, and other types of optional additional services.

“Latency” means the average time required for round-trip packet transfers between selected POPs during a calendar month, as measured by Provider.

“Network Outage” means an instance in which no traffic can pass in or out of Selected POPs for more than 15 consecutive minutes.

“Packet Loss” means the average percentage of IP packets transmitted between Selected POPs during a calendar month that are not successfully delivered, as measured by Provider.

Provider Network Availability commitments are based upon goals in three key areas:

i.          Free of Network Outages 100% of the time
ii.        Latency of the network of 85 milliseconds or less
iii.       Packet loss of the network of 1% or less

Subject to the Credits Section below, upon Customer’s request, Provider will issue a credit to Customer for Network Outages in an amount equal to one day’s worth of the Data Center Services paid by Customer, multiplied by each hour (or portion thereof rounded to the next hour) of the cumulative duration of such Network Outages during a particular month and not to exceed 50% of the Data Center Services paid by Customer.

Subject to the Credits Section below, upon Customer’s request, if Latency on the Network for a calendar month exceeds 85 milliseconds, then Provider will issue a credit to Customer equal to two days’ worth of the Fully Managed Hosting Fee paid by Customer for such month.
 
The terms of this Network SLA related to Latency will take effect the first full calendar month after Customer’s first use of the Network.

Subject to the Credits Section below, upon Customer’s request, if Packet Loss on the Network exceeds 1% during a calendar month, then Provider will issue a credit to Customer equal to two day’s worth of the Fully Managed Hosting Fee paid by Customer for such month.

Measurement will be based on Service Level Reports which display the latency and packet delivery between Provider’s network and the border network.  Network statistics are collected every 5 minutes.

Customer shall have the right to terminate this Sales Order, subject to the restrictions described herein, if the Fully Managed IT Services are not available at least 96% of the time during any 7 day period and 98% of the time during any 30 day period or if the Fully Managed IT Services are not available for three or more hours on more than one day during any 30 day period."

Customer shall not receive any credits and no termination rights shall be triggered under these Network Access SLAs in connection with any failure or deficiency of the Network caused by or associated with:

1. Circumstances beyond Providers reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, terrorism, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, (including DNS propagation), failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provisions of the Services;

1. Failure of access circuits to the gateway, unless such failure is caused solely by Provider;

1. Scheduled and emergency maintenance and upgrades;

1. DNS issues outside the direct control of Provider;

1. False SLA breaches reported as a result of outages or errors of any Provider measurement system; or

1. Customer’s acts or omissions (or acts or omissions of other engaged or authorized by Customer), including without limitation, any negligence, willful misconduct, or use of the Network or Provider services in breach of this Agreement or the Usage Guidelines.
   
   
2. Failure of hardware owned or controlled by Customer, even if the maintenance or provision of Services to or from such hardware is performed by Provider.

Credits; Reporting

Coverage
These credits are available to Customer, and the termination rights shall be triggered, as long as Customer does not have payments past due.  No credits will accumulate or be payable and no termination rights shall trigger during any period when Customer has past due payments.

Service Level Agreements
Provider’s Service Level Agreements (SLAs) provide commitments based upon goals in three key areas:

Provider endeavors to have your server and equipment accessible over the network 100% of the time (“Server Availability”) as measured by ICMP packet delivery for Data Center Services excluding scheduled maintenance.  Scheduled maintenance typically occurs once per month and may result in down time of approximately one hour and generally occur on the weekends or between the hours of 12 midnight and 6 am CST.  Customers will be notified by email as early as possible before the scheduled maintenance.

Credits
In the event that there is no accessibility, excluding scheduled maintenance, Provider will credit the following month’s Service fee as follows.  If the Server Availability is below 100% (excluding scheduled maintenance and customer hardware failure, customer reboots, critical patch installation reboots, and customer content failures) for any particular month, the credit shall be retroactive and equivalent to the difference between the guaranteed level of availability of the Customer’s Services during the month and the calculated actual level of availability of the Customer’s Services, multiplied by the actual charges incurred by the Customer for the World Class Data Center Services (See Sales Order)  during that month period.

In addition, for World Class Data Center Services, Customer may be entitled to additional credits as calculated below and as measured 24-hours a day in a calendar month, with the maximum credit not to exceed fifty (50%) of the World Class Data Center Services for the affected month. 

World Class Data Center Services -- Minutes of continuous service downtime Credit:

90 minutes:                                                                15%
180 minutes or more                                                25%

In order for you to receive a credit on your account, you must request such credit within one (1) month after you experienced a covered problem.  You must request credit by sending an electronic mail message to billing@echomountain.com.  For security, the body of this message must contain your account information (Master Service Agreement Number, Sales Order Number), the dates and times of the unavailability of your Web site, and such other Customer identification requested by Provider.  Credits will be applied within thirty (30) days of your credit request.  The termination rights and SLA-based credits described herein shall be Customer’s sole and exclusive remedy with respect to failures in availability or uptime.

Restrictions

Credits shall not be provided to you and termination rights shall not be triggered in the event that you have no Customer Content availability resulting from (i) scheduled maintenance, (ii) your actions or (iii) circumstances beyond Provider’s reasonable control.

Traffic Reporting and Analysis
Provider will provide, without additional cost to Customer industry standard User log information which will allow detailed traffic and performance reports.

Acceptable Use Policy

I. INTRODUCTION AND COVERAGE

A.  General

This Acceptable Use Policy (the “Policy”) sets forth guidelines for acceptable use of the echoMountain System (the “Service”).  This Policy applies to all aspects of the Service, including e-mail, USENET postings, chatting, and browsing.  All users of the echoMountain System (“Users”) are required to comply with this Policy.  By using the echoMountain System, each User acknowledges that such User has read, understood and agrees to abide by this Policy.  Users must also comply with all terms and conditions of applicable agreements, and with any additional policies that may be applicable to a specific service offered by echoMountain.  This Policy is incorporated into any such additional agreements.

B.  Definitions

As used in this Acceptable Use Policy, the terms shall have the respective meanings set forth below:

“echoMountain” includes, without limitation, echoMountain, LLC and their affiliates and subcontractors.

“echoMountain Services ” includes, without limitation the echoMountain Services and all systems, services, and products that utilize, or are utilized in connection with, the echoMountain Services.

C.  Conformance With Policies of Other Backbone Carriers

In situations where data communications are carried across networks of other Backbone Carriers, Users of the echoMountain System must also conform to the applicable acceptable use policies of such other Backbone Carriers.

D.  Revisions

echoMountain reserves the right to modify this Acceptable Use Policy at any time without prior notice.

II.  COMPLIANCE

A.  General

All Users are required to comply with this Acceptable Use Policy, as well as all applicable laws and regulations.  In the event any user is, or is reasonably believed by echoMountain to be, in violation of this Acceptable Use Policy, echoMountain reserves the right, but assumes no obligation, to: (i) suspend or terminate any or all of the affected services; (ii) remove or delete the offending content from the echoMountain network or echoMountain Services; (iii) block any violating activity; (iv) monitor any use, activity, traffic, content, or email communications through use of the Services.   In addition, echoMountain may take any other appropriate action, legal or otherwise, against a User for violations of the Policy, which may include termination of the Service.  echoMountain does not make any promise, nor does it have any obligation, to monitor or police activity occurring via the Service and will have no liability to any party, including any User, for any violation of the Policies.  echoMountain shall not be responsible for any failure or delay on its part in taking any such action. 

Without limiting anything elsewhere in this Acceptable Use Policy, Users shall not use, or permit other parties to use, the echoMountain Services to store, transmit or otherwise process information or other material that is, or in a manner that is: (i) defamatory, offensive, abusive, indecent, obscene, pornographic or menacing, (ii) in violation of the laws (including U.S. export laws concerning the transmission of technical data and other regulated materials) or the intellectual property rights or other rights of any person, (iii) interferes with other users of the echoMountain network or other networks, or (iv) to the extent applicable, violates the Acceptable Use Policy as set forth herein.  Each User shall defend, indemnify and hold echoMountain, its employees, contractors and agents harmless from and against any claims arising out of any breach of the foregoing. 

B.  Responsibilities

echoMountain provides an unfiltered connection to the Internet.  No data, documents, materials, or information that enters the echoMountain System is reviewed before being transmitted to users.  Accordingly, echoMountain neither controls nor accepts responsibility for the content of any communications that are transmitted or made available to users, regardless of whether they originated from users of the echoMountain System.  In addition, echoMountain expressly disclaims any responsibility for the accuracy or quality of information provided by third parties that may be obtained through the use of the echoMountain System.

Each User is responsible for complying with this Acceptable Use Policy, and for providing reasonable assistance to echoMountain in investigating and resolving issues, problems, and/or complaints arising out of the services provided to such User.

Users are responsible for configuring their own systems.  echoMountain shall not be liable for any damage caused by such system configurations regardless of whether such configurations have been authorized or requested by echoMountain.

C.  Reporting Violations

Users are responsible for immediately reporting to echoMountain (via e-mail or phone) any network issue which could materially compromise the stability, service or security of any use by echoMountain or its customers of the echoMountain System.

D.  Consequences of Non-Compliance

Users who violate this Acceptable Use Policy may incur criminal or civil liability.  echoMountain may refer alleged violators to civil or criminal authorities for prosecution, and will cooperate fully with applicable government authorities in connection with the criminal or civil investigations of alleged violations.  echoMountain reserves the right to disclose customer information to the extent authorized by federal surveillance statutes.

III.  PROHIBITED USE

The examples of prohibited use set forth below and throughout this Acceptable Use Policy are non-exclusive, and are provided as guidelines to customers and other users of the echoMountain System.

A.  Illegal Use

Users agree to use the Service only for lawful purposes.  Use of the Service for transmission, distribution, retrieval, or storage of any information, data, or other material in violation of any applicable law or regulation (including, where applicable any tariff or treaty) is prohibited.  This includes, without limitation, the use or transmission of any data or material protected by copyright, trademark, trade secret, patent, or other intellectual property right without proper authorization and the transmission of any material that constitutes an illegal threat, violates export control laws, or is obscene, defamatory, or otherwise unlawful.  In those instances involving child pornography, echoMountain complies with all applicable Federal or State laws including providing notice to the National Center for the Missing and Exploited Children or other designated agencies.

The following activities are also prohibited:

• Attempting to intercept, redirect, or otherwise interfere with communications intended for others.

• Intentionally transmitting files containing a computer virus or corrupted data.

• Resale of echoMountain's services or products, unless expressly authorized in a separate written agreement with echoMountain.

• Harassment, whether verbal or written, or whether through language, frequency, or size of messages.

• Furnishing false or incorrect data to echoMountain on written or online applications, contracts, or other materials or information provided to echoMountain, including fraudulent use of credit card numbers or "bill to" telephone numbers.

• Attempting to circumvent or alter the processes or procedures to measure time, bandwidth utilization, or other methods to document use of echoMountain 's services.

• Any other inappropriate activity or abuse of the Service (as determined by us in our sole discretion), whether or not specifically listed in these Policies, may result in suspension or termination of the User's access to and use of the Service.

B.  Abuse

The following general actions are considered “abuse” and are strictly prohibited:

• Any conduct which violates the accepted norms and expectations of the Internet community at large (whether or not detailed in this Acceptable Use Policy). echoMountain reserves the right, in its sole discretion, to make a determination whether any particular conduct violates such norms and expectations.

• Resale of echoMountain’s services or products, unless expressly authorized in a separate written agreement with echoMountain;.

• Any conduct that restricts or inhibits any other user, whether a customer of echoMountain or a user of any other system or network, from using or enjoying any of echoMountain’s services or products, as determined by echoMountain in its sole discretion.

• Harassment, whether verbal or written, or whether through language, frequency, or size of messages.

• Creating, forwarding, posting, or distribution of chain messages of any type (also known as "pyramid" or "Ponzi" schemes).

• Forging of message headers or a sender's identity, or taking any similar action with the intent of bypassing restrictions or limits on access to a specific service or site (such as a moderated newsgroup or a site utilizing filters). This prohibition does not restrict the legitimate use of aliases or anonymous re-mailers.

• Falsifying identity or contact information (whether given to echoMountain, to the InterNIC, or put in a message header) to circumvent this Acceptable Use Policy. This prohibition does not restrict the legitimate use of aliases or anonymous re-mailers.

• Furnishing false or incorrect data to echoMountain on written or online applications, contracts, or other materials or information provided to echoMountain, including fraudulent use of credit card numbers or “bill to” telephone numbers.

• Attempting to circumvent or alter the processes or procedures to measure time, bandwidth utilization, or other methods to document use of echoMountain’s products and services.

C.  Security

Violations of system or network security are prohibited, and may result in criminal and civil liability. 

It is strictly prohibited to attempt to circumvent the authentication procedures or security of any host, network, network component, or account (i.e. "cracking") to access data, accounts, or servers which the user is not expressly permitted or authorized to access. This prohibition applies whether or not the attempted intrusion is successful, and includes unauthorized probes or scans performed with the intent to gather information on possible security weaknesses or exploitable configurations.

Users of the echoMountain System are responsible for educating themselves and configuring their systems with at least basic security. Should systems at a user’s site be violated, the user is responsible for reporting the violation and then fixing the exploited system. For instance, should a site be abused to distribute unlicensed software due to a poorly configured FTP (File Transfer Protocol) Server, the user is responsible for re-configuring the system to stop the abuse.

Users are prohibited from interfering or attempting to interfere with service to any other user, host, or network on the Internet (“denial of service attacks”). Examples of such prohibited activity include without limitation (a) sending massive quantities of data (i.e. "flooding" with ICMP, SMTP, or any other type of traffic that exceeds accepted norms of size and/or frequency) with the intent of filling circuits, overloading systems, and/or crashing hosts, (b) attempting to attack or disable any user, host, or site, or (c) using, distributing, or propagating any type of program, script, or command designed to interfere with the use, functionality, or connectivity of any Internet user, host, system, or site (for example, by propagating messages, via e-mail, Usenet posting, or otherwise, that contain computer worms, viruses, control characters or Trojan horses).  Users may not use the Service to monitor any data, information, or communications on any network or system without authorization. Users may not attempt to gain unauthorized access to the user accounts or passwords of other users.

Users are prohibited from intentionally or negligently injecting false data into the Internet, for instance in the form of bad routing information (including but not limited to the announcing of networks owned by someone else or reserved by the Internet Assigned Numbers Authority) or incorrect DNS information.

D.  E-Mail

Users are prohibited from engaging in improper use or distribution of electronic mail (“e-mail”) over the Internet. Without limitation of the foregoing, it is strictly prohibited to engage in any of the following activities:

• Sending unsolicited bulk e-mail (“UBE”, or “spamming”). This includes, but is not limited to, the distribution of UBE for commercial, informational, advertising, political, or religious purposes.

• Setting up "mailback" or “drop box” addresses in order to receive responses from UBE, either directly by the user or by a third party on behalf of the user.

• Using a mail transport agent (MTA) outside of a user’s own site to relay mail (unless a user has received express permission to do so). Even if permission has been received, users are prohibited from forging their identities to make it appear as though the e-mail sourced from the relay.

• Sending UBE, or posting news, to advertise or promote resources whose connectivity depends in any way on the echoMountain System, regardless of whether such UBE or news posting is made using the echoMountain System. For example, using another ISP’s services to send UBE which advertises a web page hosted by or via the echoMountain System is prohibited.

• Hiring or using any third party service for the purpose of distributing UBE or excessively “multi-posting” or “cross-posting” any Usenet posting in the name of a user.  Users will be held responsible for the actions of any third party agent that acts on behalf of or for the benefit of the user, and such users shall be held directly accountable for any violations of this Acceptable Use Policy by such third party agent.

• A User may not attempt to send e-mail messages or transmit any electronic communications using a name or address of someone other than the User for purposes of deception. Any attempt to impersonate someone else by altering a source IP address information or by using forged headers or other identifying information is prohibited. Any attempt to fraudulently conceal, forge, or otherwise falsify a User's identity in connection with use of the Service is prohibited.

• Using a third party’s electronic mail server to relay e-mail without express permission from such third party.

• Users must comply with the CAN-SPAM Act

Bulk e-mail may be sent only to recipients who have expressly requested receipt of such e-mail. Users that send solicited bulk e-mail are required to maintain records of all bulk e-mail subscription requests, and to provide echoMountain with such records upon request of echoMountain, to enable echoMountain to investigate complaints from third parties. The sender of any solicited bulk e-mail shall, upon the request of a recipient, immediately remove such recipient from all applicable mailing lists and refrain from further transmissions of e-mail to such recipient.

Use of any auto-responder messages, mailing lists, or any other programs or scripts run by a user to handle or re-distribute e-mail is the sole responsibility of the user, and shall be operated in a reasonable manner. This responsibility includes, but is not limited to, maintaining up-to-date mailing lists to minimize mail bouncing and to facilitate the processing of removal requests, configuring auto-responders so that they do not create mail loops, and the prompt handling of any complaints regarding UBE re-distributed through a mailing list onsite.

E.  USENET

All Usenet guidelines and restrictions are incorporated herein by reference, and users of the echoMountain System agree to adhere to such guidelines unconditionally.

Without limitation of the foregoing, it is strictly prohibited to engage in any of the following activities:

• Making any posting for commercial purposes (including without limitation the pointing to specific URLs for commercial purposes), except where such postings are expressly permitted under the charter and/or Frequently Asked Questions (FAQ) of an applicable newsgroup.

• Posting binary files to newsgroups whose charter or name does not include allowances for such files.

• Posting via echoMountain’s newsfeed any solicitation for mailback to an e-mail address (including addresses of non-echoMountain users) networks with the intention of bypassing this Acceptable Use Policy.

• Canceling newsgroup postings other than their own, or using auto-responders or cancel-bots (or similar automated or manual routines) which generate excessive network traffic or disrupt Usenet newsgroup/e-mail use by others (except in cases of official newsgroup moderators performing their duties).

• Engaging in "Excessive Cross-Posting" (ECP) or "Excessive Multi-Posting" (EMP) or "Usenet spam" (no matter what the content might be) as defined by the Internet community and expressed in the news.admin.net-abuse.* newsgroups and FAQs.

• Disrupting newsgroups with materials, postings, or activities that are (as determined by echoMountain in its sole discretion) frivolous, unlawful, obscene, threatening, abusive, libelous, hateful, excessive, or repetitious, unless such materials or activities are expressly allowed or encouraged under the newsgroup's name, FAQ, or charter.

• Using filtering messages (e.g. NoCeM) in an intrusive manner, or at other than the user's server level. Generally, filtering messages are considered normal Usenet traffic and are treated as such by echoMountain. Complaints regarding filter use or abuse should be directed either to the source generating them or the sites utilizing them.

• Performing any unauthorized creation, cancellation, or removal of newsgroups.

The legitimacy of a given post or cancellation is determined by the official newsgroup or mailing-list moderator. Therefore, echoMountain defers to their judgment on these issues. If no such official entity exists, it is at echoMountain’s discretion to determine whether any post or cancellation is compliant with this Acceptable Use Policy and Internet community standards for that newsgroup.

F.             World Wide Web

echoMountain strictly prohibits users from engaging in any of the following web-related activities:

• The exploitation or attempted exploitation of any scripts presented on web pages (e.g. changing forms for answering questions or for entering data).

• Excessive use of bandwidth by utilizing programs, scripts, or commands to abuse a web site (for example, by connecting for an excessive amount of time, repeatedly engaging site-local scripts, or related behavior).

• "Walking" a database for the purpose of collecting data contained therein (whether or not this behavior requires that the reader of the page must knowingly ignore files such as "robot.txt" which is designed to guide cataloguing robots/programs).

• Operating a robot on a site's page after the site has asked that the behavior cease.

• Configuring a web page to act maliciously against users that visit that web page.

IV.            PRIVACY

Because the Internet is an inherently open and insecure means of communication, any data or information a User transmits over the Internet may be susceptible to interception and alteration. echoMountain makes no guarantee regarding, and assume no liability for, the security and integrity of any data or information a User transmits via the Service or over the Internet, including any data or information transmitted via any server designated as “secure”.

V.             COMPLAINTS AND CONTACT INFORMATION

Any complaints regarding prohibited use or other abuse of the echoMountain System, including violations of this Acceptable Use Policy, should be sent via e-mail to echoMountain.  Please include all applicable information that will assist echoMountain in investigating the complaint, including all applicable header lines of forwarded messages.

Sites experiencing live attacks from echoMountain customers should call echoMountain to submit a complaint as quickly as possible. Describe the urgency of the situation should you need immediate attention.

VI.            ADDITIONAL USER RESPONSIBILITIES

Users must comply with the following obligations:

• Users must provide and maintain twenty-four (24) hours each day, an operations contact, including a role account e-mail address (e.g. for a network engineer or routing engineer) and an e-mail address and telephone number for the primary contact.

• Users will not take any action with the purpose of circumventing payment to echoMountain for use of the echoMountain System.

• Users must only use the IP addresses and netmasks assigned by echoMountain for its connection to the echoMountain System.

• Users may only use one globally unique MAC address for each Port unless otherwise agreed to by echoMountain in writing.

• Users must explicitly set and at all times maintain duplex and speed settings on  interfaces connected to the echoMountain System and disable auto-negotiation.

VII.           DIGITAL MILLENNIUM COPYRIGHT ACT

Users acknowledge that pursuant to the Digital Millennium Copyright Act, echoMountain has (a) adopted a policy providing for termination of subscribers and account holders who are repeat offenders, (b) designated an agent to receive notification of claimed infringement from the copyright owner, (c) posted the name, address, phone number and email address of the designated agent on echoMountain’s web site, and (d) registered the designated agent with the Copyright Office.  Users acknowledge and agree that in no event shall echoMountain be liable for any damages, whether in contract or tort, including, but not limited to, direct, consequential (including without limitation loss of profits), cost of substitute goods, special, exemplary, incidental and indirect damages, arising out of compliance or reasonable attempts to (i) comply with the United States Copyright Act or (ii) satisfy requirements to qualify for the safe harbors designated in the Digital Millennium Copyright Act.

VIII.          LIMITATION OF LIABILITY

ECHOMOUNTAIN SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF BUSINESS OR BUSINESS OPPORTUNITY, LOSS OF USE, ETC., EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  ECHOMOUNTAIN SHALL NOT BE LIABLE FOR ANY DIRECT OR ACTUAL DAMAGES, EXCEPT TO THE EXTENT SPECIFIED IN A WRITTEN OR ELECTRONIC AGREEMENT ENTERED INTO BETWEEN ECHOMOUNTAIN AND ITS CUSTOMER.

On Demand Professional Services

This document defines the difference between non-billable standard technical support services and our On Demand Professional Services.  echoMountain provides 24x7x365 technical support regarding the services we provide our Customer.  A distinction will be made between issues that are the responsibility of the Customer and those that are the responsibility of the Provider.

The following types of requests shall be provided to Customer at no additional charge and are limited to labor and no additional charge does not apply to any hardware additions or replacements which may not be covered by manufacturer warranty or service agreement.

• Issues relating to the connectivity of Customer equipment within echoMountain’s data center to echoMountain’s network.
• Issues relating to Network outages, latency and packet loss.
• Coordination, installation and configuration of failed hardware components on server equipment that is under a service agreement with the manufacturer.  Such hardware services shall be resolved on the time schedule set forth on the service agreement with the manufacturer.
• Issues relating to server data center environment such as power, UPS, Diesel Generators, Air Conditioning, and Fire Detection.
• Automated Patching of Operating Systems
• Managed Virus protection.
• Standard Firewall Configuration on Network Firewall for standard network ports and 1 Cisco VPN software client connection.
• Configuration of DNS Zone for one domain.
• Operating System installation on new server setups.
• Configuration of backup services for customers who have ordered echoMountain’s Data Protection Services
• Configuration of Monitoring services for customers who have ordered echoMountain’s Enterprise Monitoring, Notification & Reporting service.
• Configuration of Total Protection Email Services and accounts.

The following types of requests, while not all inclusive, shall incur an On Demand Professional Services charge. 

• Database Server Administration.
• Application Server Administration.
• Performance Analysis.
• Capacity Management.
• Fault Management
• Service restarts
• Customer Application Configuration Issues
• Analysis and/or resolution of Customer content, bugs, defects or errors.
• Application Installations and Configurations.
• Systems Administration beyond Operating System installation and patch installations.
• Customized Network Configurations
• VPN Tunnel Configuration
• Remote Customer Site Network Connectivity Issues
• Configuration of Customer Email client software such as Outlook or Thunderbird.
• Application Connectivity Issues to external services
• Scheduled Job Configurations
• Customized Reporting
• Clustering and Load Balancing Configuration
• Disaster Recovery Planning

It shall be the determination of providers technical support team as to whether an issues and requests are On Demand Professional Services or standard technical support.  Provider shall provide case management of all requests along with an analysis of the determination of whether or not services performed are professional services or not. 

The cost for On Demand Professional Services vary based on the time the service is required.  On Demand Professional Services are billed in quarterly hour increments.  On Demand Professional Services may be pre-purchased on a block basis for a discount, or on a monthly recurring basis.  A Sales Order must be completed before Pre-Purchased Blocks of Hours or Monthly Recurring Basis Hours may be used. 

The following schedule sets forth the rates for On Demand Professional Services:

*Hourly On Demand Professional Services are billed in quarterly hour increments.