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Hosting & Services Agreement




 

THIS HOSTING & SERVICES AGREEMENT (the "Agreement") governs your purchase and use of all website hosting services, including the shared server hosting services, virtual dedicated server hosting services, dedicated server hosting services, term hosting services and any add-on services (collectively, the "Services"), as described in this document and ordering process, as accepted by Balboa Technology at www.balboatech.com ("BalboaTech"). BalboaTech will indicate its acceptance by sending an electronic confirmation of your order via e-mail. You must register and accept the terms of this Agreement in order to use the Services. BY CHECKING THE "I ACCEPT" BOX DURING SIGNUP, AND/OR REGISTERING FOR AND USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS AS WELL AS ALL POLICIES AND GUIDELINES INCORPORATED BY REFERENCE.

BalboaTech may modify any of the terms and conditions contained in this Agreement and any policy or guideline incorporated by reference, at any time in its sole discretion and may also determine whether and when the modifications apply to existing or future clients. Any modifications are effective upon posting of the revisions on the BalboaTech Web site located at http://www.balboatech.com/ (the "Site"). BalboaTech will post a notice of modifications to this Agreement on the Site for 30 days. BalboaTech may post modifications to referenced policies and guidelines without notice to you. Your continued use of the Services following BalboaTech's posting of any modifications constitutes your acceptance of the modifications. IF YOU DO NOT AGREE TO THIS AGREEMENT'S TERMS DO NOT CHECK THE "I ACCEPT" BOX. IF YOU DO NOT AGREE TO THE TERMS OF ANY MODIFICATION, DO NOT CONTINUE TO USE THE SERVICES AND IMMEDIATELY NOTIFY BALBOATECH OF YOUR TERMINATION OF THIS AGREEMENT IN THE MANNER DESCRIBED IN SECTION 1.2 BELOW.

1.  Term and Payment for Services.

 1.1. Term. This Agreement will be for an "Initial Term" of either: (a) thirty (30) days if you register for monthly services payments, (b) as otherwise chosen by you in the Electronic Order Form, located on the Site, at the time you register for the Services, or (c) as otherwise chosen by you on the Order Form and Term Services, executed in writing or by facsimile, at the time you register for the Services directly with BalboaTech or a BalboaTech representative. This Agreement will be automatically renewed (the "Renewal Term") at the end of the Initial Term for the same period as the Initial Term, unless you provide BalboaTech with notice of termination either: (a) at least seven (7) days before the end of the Initial Term or the Renewal Term, whichever is then applicable, if you registered for and are receiving Services on a monthly basis, or (b) at least thirty (30) days before the end of the Initial Term or Renewal Term, whichever is then applicable, if you registered for and are receiving Services or have pre-paid for Services on either a quarterly, semi-annually, annually or greater basis.

1.2. Termination Policy.

1.2.1. Voluntary Termination By You. If you terminate the Services before the end of the Initial Term or the Renewal Term, whichever is then applicable: (a) BalboaTech will not refund to you for any fees paid in advance of termination, and (b) you will be required to pay the remainder of all charges remaining in the term, unless otherwise expressly provided in this Agreement. You must submit your termination request for the Services by logging in to your account and submitting a Tech Support Ticket (URL: https://www.balboatech.com/submitticket.php?step=2&deptid=1). Due to the secure nature of our Services, cancellations by phone, e-mail, or without adequate demonstration of right to cancel will be deemed invalid.

1.2.2. Voluntary Termination By BalboaTech. BalboaTech may terminate this Agreement at any time and for any reason by with or without prior written notice of termination. If BalboaTech terminates this Agreement, BalboaTech will refund to you the pro-rata portion of pre-paid fees attributable to Services not yet rendered within one week following the date of termination, unless otherwise expressly provided in this Agreement.

1.2.3. Termination For Violation or Breach. BalboaTech may immediately and without prior notice terminate this Agreement upon a violation by you of BalboaTech’s Acceptable Use and Service Policy or upon a violation by you of BalboaTech’s Abuse Policy; and BalboaTech may terminate this Agreement immediately if, after fifteen (15) days prior notice to you, you have failed to correct any breach of this Agreement.

1.2.4. Procedures Upon Termination. Upon any termination in accordance with Section 1.2.1 or 1.2.2, BalboaTech may permit you forty-eight (48) hours to download or otherwise copy any of your information and data residing on BalboaTech’s facilities prior to removing such information and data from BalboaTech’s facilities. Upon termination by BalboaTech under Section 1.2.3, BalboaTech may immediately remove all of your data and information from BalboaTech’s facilities and you shall have no right to copy or download such data or information, and, in such event, all such information and data, including all copyrighted or copyrightable material therein, shall then become the property of BalboaTech. In cases where your account has been cancelled, and you are requesting reactivation, BalboaTech, at it’s option, may reactivate the same account, only if the account had been cancelled less than three (3) days prior. After three (3) days, you will be required to set up a new account.

1.3. Liability and Obligations on Termination. If the Agreement expires or is terminated for any reason, BalboaTech is not liable to you because of the expiration or termination for compensation, reimbursement or damages on account of the 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 the termination or expiration. If you terminate this Agreement, BalboaTech will not relieve you of any obligations to pay fees and costs accrued before the termination date or any other amounts you owe to BalboaTech under this Agreement. In cases where we have provided equipment to you, you must, at your own expense, return all BalboaTech equipment within ten (10) days of the date of notification of termination. Otherwise you will be financially responsible for the cost of new replacement equipment. BalboaTech shall invoice you for such equipment, and payment will be due within thirty (30) days of invoice date.

1.4. Charges. You will pay all charges for your use of the Services at the then current BalboaTech prices, which will be exclusive of any applicable taxes. Such fees and charges shall include, without limitation, the fees for connectivity, design services, and charges by any and all third parties whose materials are included as part of the Services. BalboaTech reserves the right to change the amount of, or basis for determining, any fees or charges and institute new fees and charges upon prior notice to you. You are responsible for paying 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 BalboaTech's net income.

1.5. Payment. You will pay all charges for Services in advance according to the then current price for the Services, or any fixed price as agreed to in the applicable Electronic Order Form or Term Hosting Service Agreement. When registering for Services electronically, you must choose to pay for the Services by credit card. Your election to pay by credit card hereby duly authorizes BalboaTech to charge your credit or debit card to pay for any charges that may apply to your account. BalboaTech may elect, at its option, accumulate any supplemental charges, as described in the Electronic Order Form, that you incur in your use of the Services ("Supplemental Charges") until the charges exceed $20 and then charge your card. You must notify BalboaTech of any changes to your credit card account (including, applicable account number changes or cancellation or expiration of the account), your billing address, or any information that may prohibit BalboaTech from charging your account.

Your failure to fully pay any fees and taxes within ten (10) days after the applicable due date is a material breach of this Agreement, justifying BalboaTech in suspending its performance and terminating this Agreement. If BalboaTech terminates for your material breach, you must still pay past due fees plus interest. You are responsible for any costs BalboaTech incurs in enforcing collection, including reasonable attorneys' fees, court costs and collection agency fees. If you reinstate Services, you must pay any fees associated with reinstating Services.

1.6. 30-Day Money Back Guarantee. During the Initial Term, if you are not fully satisfied with the Services (not applicable to Term Hosting), you may elect to terminate this Agreement at any time during the first thirty (30) days from your initial order date and receive a full refund of all payments you made to BalboaTech for the Services, except for set-up fees and domain registration fees, which are non-refundable. To receive your refund, you must terminate this Agreement in the manner described in Section 1.2.1 and immediately cease using the Services, and BalboaTech must receive your termination notice within the 30-day period. In addition to the requirements specified in Section 1.2.1 for cancellation, your notice must further describe why you are not satisfied with the Services. Add-on Backup Services, Firewall Services, Load Balancing Services, and Term Hosting Services are not covered under the provisions of this Section 1.6, and are not subject to a 30-Day Money Back Guarantee.


2.  Use of Services.

 2.1. Applicable Policies and Guidelines. From time to time BalboaTech may impose reasonable rules and regulations regarding the use of the BalboaTech Services. Such rules, covenants and restrictions are called acceptable use and service policies and are posted on the Site at http://www.balboatech.com/knowledgebase/12/AUP.html and abuse polices posted on the Site at http://www.balboatech.com/knowledgebase/14/Abuse-Policy.html. All such acceptable use and service policies and abuse policies are incorporated by reference into this Agreement as if fully set forth herein. The BalboaTech Acceptable Use and Service Policy (the "AUP") governs the general policies and procedures for use of the Services. The BalboaTech Abuse Policy governs how BalboaTech responds to specific instances of abuse and defines such instances of abuse. BalboaTech's Privacy Policy governs how BalboaTech collects, stores, processes and uses information associated with your use of the Services. The Privacy Policy is posted on the Site at http://www.balboatech.com/knowledgebase/13/Privacy-Policy.html and may be updated from time-to-time. YOU SHOULD CAREFULLY READ THE AUP AND ABUSE POLICY. BY USING THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF THE AUP AND ABUSE POLICY AND ANY MODIFICATIONS TO THE TERMS. BalboaTech MAY TERMINATE YOUR ACCOUNT FOR ANY VIOLATION OF THE AUP, THE ABUSE POLICY OR THIS AGREEMENT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 1.2.3 HEREIN.

2.2. Material and Product Requirements. You must ensure that all material and data placed on BalboaTech's equipment is in a condition that is "server-ready," which is in a form requiring no additional manipulation by BalboaTech. BalboaTech will make no effort to validate any of this information for content, correctness or usability. If your material is not "server-ready", BalboaTech may reject this material. BalboaTech will notify you of its refusal of the material and afford you the opportunity to modify the material to satisfy BalboaTech's requirements. 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 and desired content of your Web site. You must have the necessary knowledge to create and maintain a Web site.

BalboaTech  also provides website design and development services via the Internet and other platforms through BalboaTech Internet website (http://www.BalboaTech.com/). Clients interested in utilizing these custom services should contact BalboaTech directly at that website.

2.3. Bandwidth, Storage, and E-Mail Usage. For Services, you will not exceed the bandwidth, data storage, database and E-mail usage limits specified on the Electronic Order Form at the time you registered for the Services. If you use any bandwidth, database or data storage space in excess of the agreed upon number of megabytes per month or if you exceed E-Mail storage and attachment size limitations, BalboaTech may, at its sole discretion, assess you with additional charges, suspend the Service, or terminate this Agreement. If BalboaTech elects to take any corrective action, BalboaTech will not refund any unused pre-paid fees. Your use of your account and access to it is your responsibility. You are responsible for any unauthorized access to your account resulting in bandwidth, storage and/or E-mail usage exceeding the limits in the Order Form and resultant charges.

2.4. Domain Names. As part of the Services, you will provide BalboaTech with a registered domain name or names, or BalboaTech will register domain name(s) you select if the domain name is available for registration and does not violate any contracted registrar’s policies, or any law or regulation. You will promptly pay BalboaTech for any fees associated with Domain Name registration as specified on the Order Form(s). Your request for and/or acceptance of a domain name obtained by BalboaTech shall in all cases constitute your waiver of any and all claims which you may have, or which may later arise, against BalboaTech or its third party providers, for any and all damages, losses, claims or expenses arising our or related to the acquisition, registration and/or use of the domain name. Any cost incurred by BalboaTech to obtain and/or maintain the domain name on your behalf shall be charged to you. Request for and acceptance of a domain name requires BalboaTech to supply the domain name to a contracted registrar, which in turns supplies the domain name to third parties.

If any dispute or cause of action arises out of or is related to your domain name used in connection with the Services, then upon your request, BalboaTech will attempt to register with a contracted registrar an alternative domain name you chose. Upon registering your domain name, you are bound by the terms of contract registrar’s then current domain name policy and the policies of the national DNS registration authorities. BalboaTech will not refund any fees you paid with respect to the registration of a domain name you are unable to use.

In the event that you elect to have BalboaTech act as your managing agent for DNS, you agree to designate our administrator’s as the Technical Contact on the Domain Registration Record for the duration of time that BalboaTech is responsible for ongoing DNS management. If you elect to perform DNS management through another responsible party or on your own, you are not required to specify BalboaTech as the Technical Contact on the Domain Registration Record.

BalboaTech’s DNS info is:
     
BalboaTech DNS Admin E-Mail: 
[email protected]

Primary Nameserver: ns1.newportwebhosting.com
Primary Nameserver IP Address: 72.14.176.157

Secondary Nameserver: ns3.newportwebhosting.com
Secondary Nameserver IP Address: 66.228.50.9

2.5. Security. Unless otherwise specified, you are solely responsible for any security breaches affecting servers or accounts under your control. If your server or website is responsible for or involved in an attack on or unauthorized access into another server or system, BalboaTech will shut it down immediately. You will incur any charges resulting from the cost to correct security breaches affecting BalboaTech or any of its other clients.

2.6. Commercial Advertisements via E-Mail. You will not use BalboaTech Services, your account or server to send or facilitate in any way the transmission of unsolicited commercial email. BalboaTech will enforce substantial penalties, including charging you for related network costs and terminating your account, for any violations of this Section 2.6.


3.  Intellectual Property Rights.

 3.1. BalboaTech License Grant to You. During the term of this Agreement, BalboaTech grants to you a non-exclusive, personal, non-transferable license to access and use the Services solely on and as part of BalboaTech’s World Wide Web site and servers. BalboaTech may modify the Services at any time for any reason and may provide modified versions of the Services to you.

3.2. Your License Grant to BalboaTech. You grant to BalboaTech a non-exclusive, worldwide, and royalty-free license for the Initial Term and the Renewal Term, if applicable, to edit, modify, adapt, translate, exhibit, publish, transmit, participate in the transfer of, reproduce, create derivative works from, distribute, perform, display, and otherwise use your content as necessary for the purposes of rendering and operating the Services to you under this Agreement. You expressly: (a) grant to BalboaTech a license to cache materials distributed or made available for distribution via the Services, including content supplied by third parties, and (b) agree that this caching is not an infringement of any of your intellectual property rights or any third party's intellectual property rights.

3.3. Your Warranties and Representations to BalboaTech. You warrant, represent, and covenant to BalboaTech that: (a) you are at least 18 years of age; (b) you possess the legal right and ability to enter into this Agreement; (c) you will use the Services only for lawful purposes and in accordance with this Agreement and all applicable policies and guidelines; (d) you will be financially responsible for the use of your account; (e) you have acquired or will acquire all authorization(s) necessary for hypertext links to third-party Web sites or other content; (f) you have verified or will verify the accuracy of materials distributed or made available for distribution via the Services, including your content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted, and (g) your content does not and will not infringe or violate any right of any third party (including any intellectual property rights) or violate any applicable law, regulation or ordinance.

3.4. BalboaTech Materials and Intellectual Property. All materials, including any computer software (in object code and source code form), data or information that BalboaTech or its suppliers or agents develop or provide under this Agreement, and any know-how, methodologies, equipment, or processes BalboaTech uses to provide the Services to you, including all copyrights, trademarks, patents, trade secrets, and any other proprietary rights inherent therein and appurtenant thereto will remain BalboaTech's or its suppliers' sole and exclusive property. You further agree not to translate, decompile, reverse engineer, disassemble, modify, reproduce, rent, lease, lend, sublicense, distribute, remarket or otherwise dispose of any portion of the BalboaTech Services. You hereby acknowledge that, if BalboaTech at any time or from time to time performs any customizations or modifications to the Services, all rights and interests to such customizations or modifications shall be the sole property of BalboaTech. BalboaTech will also maintain and control ownership of all Internet protocol ("IP") numbers and addresses that BalboaTech may assign to you. BalboaTech may, in its sole discretion, change or remove any and all IP numbers and addresses.


4.  Enforcement.

 4.1. Investigation of Violations. BalboaTech may investigate any reported violation of this Agreement, or its policies or any complaints and take any action that it deems appropriate and reasonable under the circumstance to protect its systems, facilities, clients or third parties. BalboaTech will not access or review the contents of any e-mail or similar stored electronic communications except as required or permitted by applicable law or legal process.

4.2. Actions. BalboaTech may restrict or remove from its servers any content that violates this Agreement or related policies or guidelines, or is otherwise objectionable or potentially infringing on any third party's rights or that potentially violates any laws. If BalboaTech becomes aware that you have possibly violated this Agreement, any related policies or guidelines, third party rights or laws, BalboaTech may immediately take corrective action, including: (a) issuing warnings, (b) suspending or terminating the Service, (c) restricting or prohibiting any and all uses of content hosted on BalboaTech's systems, and (d) disabling or removing any hypertext links to third-party Web sites, any of your content distributed or made available for distribution via the Services, or other content not supplied by BalboaTech that, in BalboaTech's sole discretion, may violate or infringe any law or third-party rights or that otherwise exposes or potentially exposes BalboaTech to civil or criminal liability or public ridicule. It is BalboaTech's policy to terminate repeat infringers. These rights of action, however, do not obligate BalboaTech to monitor or exert editorial control over the information made available for distribution via the Services. If BalboaTech takes corrective action because of a possible violation, BalboaTech will not refund to you any fees you paid in advance of the corrective action.

4.3. Disclosure Rights. To comply with applicable laws and lawful governmental requests, to protect BalboaTech's systems and clients, or to ensure the integrity and operation of BalboaTech's business and systems, BalboaTech may access and disclose any information it considers necessary or appropriate, including, user profile information (i.e., name, e-mail address, etc.), IP addresses and traffic information, usage history, and content residing on BalboaTech's servers and systems. BalboaTech may 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 BalboaTech's Privacy Policy and BalboaTech's right to disclose under this section, BalboaTech's right to disclose under this section will control.


5.  Disclaimed Warranties. BalboaTech exercises no control over, and accepts no responsibility for, the content of the information passing through BalboaTech's host computers, network switches, network hubs and points of presence, or the Internet. ALL SERVICES PERFORMED UNDER THIS AGREEMENT ARE PERFORMED "AS IS" AND WITHOUT WARRANTY AGAINST FAILURE OF PERFORMANCE INCLUDING, ANY FAILURE BECAUSE OF COMPUTER HARDWARE OR COMMUNICATION SYSTEMS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, BalboaTech DOES NOT MAKE AND DISCLAIMS, AND YOU WAIVE ALL RELIANCE ON, ANY REPRESENTATIONS OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING THE SERVICES, INCLUDING 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. IN NO EVENT WILL BalboaTech OR ITS 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 ACCIDENT, FRAUDULENT MEANS OR DEVICES. NEITHER BalboaTech NOR ITS SUPPLIERS WILL HAVE LIABILITY WITH RESPECT TO BalboaTech'S OBLIGATIONS UNDER THIS AGREEMENT, OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF BalboaTech HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES. THE LIABILITY OF BalboaTech AND ITS SUPPLIERS TO YOU FOR ANY REASON AND UPON ANY CAUSE OF ACTION IS LIMITED TO THE AMOUNT YOU ACTUALLY PAID TO BalboaTech UNDER THIS AGREEMENT DURING THE 3 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. THE FEES FOR THE SERVICES SET BY BalboaTech UNDER THIS AGREEMENT HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY, YOU RELEASE BalboaTech AND ITS SUPPLIERS FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIMS IN EXCESS OF THE LIMITATION STATED IN THIS SECTION 6.1.

Except for certain products and services specifically identified as being offered by BalboaTech, BalboaTech does not control any materials, information, products, or services on the Internet. The Internet contains unedited materials, some of which are sexually explicit or may be offensive to you. BalboaTech has no control over and accepts no responsibility for such materials. You assume full responsibility and risk for use of the services and the Internet and are solely responsible for evaluating the accuracy, completeness, and usefulness of all services, products, and other information, and the quality and merchantability of all merchandise provided through the service or the Internet.

6.2. Interruption of Service or Loss of Data. While BalboaTech makes reasonable efforts to maintain the BalboaTech service, many factors are not within BalboaTech’s control. Therefore, BalboaTech does not warrant, and is not responsible for (even if caused by the negligence of BalboaTech) any loss of data, delays, non-delivery or mis-delivery of information, lack of access, slows response time, or service interruptions or errors. Loss, delay or non-delivery of data can be due to but not limited to BalboaTech’s own negligence, viruses or other third parties. Your data is defined as any data held by BalboaTech and includes account information, web hosting data, email and domain name services. This disclaimer and waiver shall apply equally to any and all third party providers. BalboaTech provides no warranty to client regarding the accuracy of usage statistics, which BalboaTech may provide in its discretion. Further, no advice or information given by a BalboaTech representative shall create a warranty or serve as an amendment to this agreement.

6.3. Service Level Agreement. BalboaTech, as a practice, strives to provide you with the greatest possible uptime and performance for the Services. Due to the nature of the Internet and networking technology and equipment, it is not always possible for BalboaTech to guarantee the availability of your website or servers. In an effort to ensure, however, that you receive the value and promises that you have paid for, BalboaTech has created a service level agreement for all classes of service (Shared, Virtual Private and Dedicated Hosting) which you hereby agree to incorporate as if fully set forth herein. The www.balboatech.com may be updated from time-to-time, is incorporated by reference to this Agreement and can be viewed at: http://BalboaTech.BalboaTech.com/company/sla.php. YOU SHOULD CAREFULLY READ THE SERVICE LEVEL AGREEMENT. BY USING THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF THE SERVICE LEVEL AGREEMENT.


7.  Indemnification. You release and hold harmless, and agree to indemnify, BalboaTech and its affiliates, parent and suppliers (and their respective employees, directors and representatives) against any and all claims, demands, actions, proceedings, suits, liabilities, damages, settlements, judgments, penalties, fines, costs or expenses (including, reasonable attorneys' fees and other litigation expenses) incurred by BalboaTech or its suppliers, arising out of or relating to: (a) your or your agent’s or customer’s violation or breach of any term, condition, representation or warranty of this Agreement, or any applicable policy or guideline; (b) your improper act or omission or illegal use of the Services; or (c) your violation, alleged violation, or misappropriation of any intellectual property right (including trademark, copyright, patent, trade secrets) or non-proprietary right of a third party (including defamation, libel, violation of privacy or publicity).

8.  Miscellaneous Provisions.

 8.1. Entire Agreement. This Agreement, in conjunction with all policies and guidelines incorporated by reference, constitutes the entire agreement between you and 2Net with respect to the subject matter of the Agreement, it supersedes any proposal or prior agreement, oral or written, and any other communication relating to the subject matter of the Agreement, and there are no representations, understandings or agreements that are not fully expressed in this Agreement and the related policies and guidelines.

8.2. No Fiduciary Relationship; No Third-Party Beneficiaries. BalboaTech is not the agent, fiduciary, trustee or other representative of you. Except for the rights of BalboaTech's suppliers under sections 2.4, 6 and 7, nothing expressed or mentioned in or implied from this Agreement is intended or will be construed to give to any person (other than the parties to this Agreement) any legal or equitable right, remedy or claim under or in respect to this Agreement. This Agreement and all of its representations, warranties, covenants, conditions and provisions are intended to be and are for the sole and exclusive benefit of the parties to this Agreement.

8.3. Amendments. Except as expressly provided in this Agreement, no amendment, change, waiver, or discharge of this Agreement is valid unless in writing and signed by the parties.

8.4. Choice of Law and Forum, Litigation Costs. THIS AGREEMENT IS GOVERNED BY THE LAWS OF THE UNITED STATES AND THE STATE OF CALIFORNIA, WITHOUT REFERENCE TO RULES GOVERNING CHOICE OF LAWS. ANY ACTION RELATING TO THIS AGREEMENT MUST BE BROUGHT IN THE FEDERAL OR STATE COURTS LOCATED IN ORANGE COUNTY, CALIFORNIA, AND YOU IRREVOCABLY CONSENT TO THE JURISDICTION OF THESE COURTS. In the event any litigation or other proceeding is brought by either party in connection with this Agreement, the prevailing party in such litigation or other proceeding shall be entitled to recover from the other party all costs, attorneys' fees and other expenses incurred by such prevailing party in such litigation.

8.5. Compliance with Laws. You will comply with all applicable laws and regulations and will indemnify and save BalboaTech harmless from your failure to so comply. BalboaTech will not have to perform any obligations set forth in this Agreement if the performance would violate any present or future law, regulation or policy of any applicable government.

8.6. Non-Assignment and Subcontracting. You may not assign this Agreement or any right or obligation under this Agreement, by operation of law or otherwise, without BalboaTech's prior written consent, and any attempted assignment or delegation without consent will be void. BalboaTech may assign its rights and obligations under this Agreement, and may utilize affiliates and agents in performing its duties and exercising its rights, without your consent. This Agreement is binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns. BalboaTech may subcontract any work, obligations or other performance required of BalboaTech under this Agreement without your consent.

8.7. No Waiver. BalboaTech's failure to enforce the strict performance of any provision of this Agreement does not constitute a waiver of BalboaTech's right to subsequently enforce the provision or any other provisions of this Agreement.

8.8. Severability. If any term or provision of this Agreement is deemed invalid, void or unenforceable either in its entirety or in a particular application, the remainder of this Agreement, if applicable, will 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, the term or provision will remain in full force and effect with respect to all other applications.

8.9. Headings. The section headings used in this Agreement are for reference and convenience only and will not enter into the interpretation of the Agreement.

8.10. Assignment. This Agreement shall be binding to both parties and their respective successors and assigns. BalboaTech reserves the right to assign any rights or obligations under this Agreement without any prior written notice to you. You shall not transfer or assign any rights or obligations under this Agreement without the prior written consent of BalboaTech, which consent shall not be unreasonably withheld.

8.11. Survival. All provisions of this Agreement relating to your warranties, intellectual property rights, limitation and exclusion of liability, confidentiality, your indemnification obligations and payment obligations and the miscellaneous provisions will survive the termination or expiration of the Agreement.

8.12. Copyright. You acknowledge the validity and BalboaTech’s exclusive ownership of all right, title, and interest in and to all BalboaTech , BalboaTech.com and www.balboatech.com logos and link logo marks (the "Marks") and, during or after the term of this Agreement, will not contest, or help others to contest, the ownership or the validity of any registrations or rights of BalboaTech , BalboaTech.com and www.balboatech.com now owned or obtained relating to the Marks. You will 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 the Marks or to damage the reputation or commercial image of BalboaTech , BalboaTech.com and www.balboatech.com or any of their products, without the express written permission of BalboaTech.

8.13. Confidentiality. You acknowledge that by reason of your relationship with BalboaTech, you may have access to certain information and materials relating to BalboaTech’s business, clients, methodology, software technology and marketing which BalboaTech treats as confidential (collectively “Confidential Information”). You shall: (a) hold in confidence, and not disclose or reveal to any person or entity, any Confidential Information without the clear and express prior written consent of a duly authorized representative of BalboaTech; and (b) not use or disclose any of the Confidential Information for any purpose at any time, other than for the limited purpose of performance under this Agreement. These obligations shall continue indefinitely for so long as the Confidential Information is a trade secret under applicable law and shall continue for two (2) years following termination of this Agreement with respect to Confidential Information, which does not rise to the level of a trade secret.

8.14. Export Control. You agree not to export or re-export any portion of the BalboaTech Service outside of the United States. You further agree to comply with all United States and other applicable laws, rules and regulations relating to the export, re-export or transshipment of the BalboaTech Services.

8.15. Force Majeure. Either party shall be excused from any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, labor disputes and strikes, riots, terrorist acts, war, and governmental requirements. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.

8.16. California Consumer Protection. Under California Civil Code Section 1789.3, California subscribers are entitled to the following specific consumer rights information: the complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs may be contacted in writing at 1020 N. Street, #501, Sacramento, CA 95814 or by telephone at 1-916-445-1254.

8.17. California Privacy Protection. Pursuant to California Civil Code 1798.82, effective July 1, 2003, anyone hosting web sites, or storing user information for their web site is required to disclose any breach of the security of the system following discovery or notification of the breach in the security to any resident of California whose unencrypted personal information was, or is reasonably believed to have been, acquired by an unauthorized person. You agree to cooperate with BalboaTech in making the disclosure to users of your site that may have been affected in the most expedient time possible and without unreasonable delay, consistent with the legitimate needs of law enforcement, or any measures necessary to determine the scope of the breach and restore the reasonable integrity of the data system. You agree to notify the owner or licensee of the information of any breach of the security of the data stored for your web site immediately following discovery, if the personal information was, or is reasonably believed to have been, acquired by an unauthorized person. The notification required by this section may be delayed if a law enforcement agency determines that the notification will impede a criminal investigation. The notification required by this section shall be made after the law enforcement agency determines that it will not compromise the investigation.

8.18. Dispute Resolution. The parties shall first attempt in good faith to resolve any dispute through open negotiation. Any dispute which remains unresolved for thirty (30) days shall be settled by binding arbitration in Orange County, California, in accordance with the then current rules of the American Arbitration Association, before one (1) independent and impartial arbitrator, mutually designated by both parties and selected by the American Arbitration Association if the parties cannot agree on an arbitrator. The prevailing party shall be entitled to recover reasonable attorney fees and costs.



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