1. RECITALS

1.1 MALLSOFT is engaged in the business of providing web site and email hosting services under the registered trade name of InstaHost (hereafter “InstaHost Services”), and desires to render its services to CLIENT as provided herein.

1.2 CLIENT desires to obtain the InstaHost Services of MALLSOFT.

THEREFORE, in consideration of the mutual promises contained herein, MALLSOFT and CLIENT agree as follows:

2. TERM

2.1 This InstaHost Agreement shall be effective commencing on the date first written above, and shall continue in effect until terminated pursuant to Paragraph 11.

3. SERVICES

3.1 MALLSOFT shall provide web site and email hosting services for CLIENT as specifically indicated by the parties by their initials on Exhibit “A” which shall be attached hereto. These services may include:

3.1.1 Initial set up (“InstaHost Set Up”) which shall include publishing CLIENT’s web site on the Internet and submitting such web site to search engines.

3.1.2 Basic monthly service (“InstaHost Basic Service”) shall include:


(a) 20 Gigabyte of network bandwidth per month;
(b) 1Gigabyte megabytes of disk space;
(c) FTP accounts;
(d) Up to 20 electronic mail addresses;
(e) Secured Web Mail;
(f) E-mail anti-virus screening;
(g) SPAM filtering;
(h) Web statistics reporting; and
(i) Quarterly Search Engine Submission

3.1.3 Optional services (“Optional Services”) shall be provided upon CLIENT’s request at the additional fees stated in Paragraph 8.1, and may include:

(a) Additional Email accounts;
(b) SSL Certificate with dedicated IP Address

3.1.4 MALLSOFT is not liable to CLIENT for files residing on MALLSOFT’s servers or the loss thereof. CLIENT is solely responsible for independent backup of data. At its option, MALLSOFT may provide backup data to CLIENT upon CLIENT’s request if data is available. In the event of an interruption of service, hardware or software failure or security leak, MALLSOFT will show due diligence to respond to the situation immediately to resolve the issue or secure the potential security leak.

3.2 Technical support services shall be provided as needed at the hourly rates stated in Paragraph 8.3.

3.3 Services specifically excluded from this InstaHost Agreement are electronic commerce services, web site design, web site maintenance, modifications, HTML coding, scripting, programming, consulting, security or any other services not specifically stated herein. If CLIENT desires these services, a separate written agreement between MALLSOFT and CLIENT may be executed, and a copy of thereof shall be attached to this InstaHost Agreement. In the event that MALLSOFT does not offer the services requested, a separate third party agreement will be required.

3.4 The parties agree that intellectual property which may be developed by MALLSOFT, its employees or independent contractors, for use by CLIENT shall be deemed to be MALLSOFT Intellectual Property unless the parties execute a separate written agreement specifically stating that such intellectual property shall belong to CLIENT.

3.5 MALLSOFT shall retain exclusive ownership of the intellectual property and services provided hereunder in their entirety, except such software provided by third party vendors (“MALLSOFT IP”). Customer agrees and acknowledges that nothing contained herein shall give Customer any right, title or interest in any MALLSOFT IP except the right to use such MALLSOFT IP in accordance with this InstaHost Agreement.

4. USE OF AGENTS, EMPLOYEES AND INDEPENDENT CONTRACTORS

4.1 MALLSOFT is authorized to engage the services of any agents, employees and independent contractors
which it may deem proper to aid or assist it in the proper performance of its duties.

5. DISCLAIMER OF WARRANTY AND LIABILITY

5.1 MALLSOFT services under this InstaHost Agreement are provided on an “AS IS” and “AS AVAILABLE” basis.


5.2 MALLSOFT disclaims any liability and offers no warranty whatsoever regarding its InstaHost Services provided hereunder, including warranties of fitness, merchantability and performance. MALLSOFT makes no warranty that the InstaHost Services will meet CLIENT’s requirements or that they will be uninterrupted, timely, secure or error free. MALLSOFT specifically does not warrant the infallibility of its web site security features, that the services will be free of harmful code, or that CLIENT’s data or electronic mail or other information will be protected or kept private. MALLSOFT does not guarantee that it will fix any defects. MALLSOFT specifically disclaims any liability and offers no warranty whatsoever regarding third party software applications that MALLSOFT may use to provide services to CLIENT. MALLSOFT further disclaims liability for any damages that may result from disruption of service. CLIENT understands that the use of the InstaHost Services is entirely at CLIENT’s own risk.

5.3 MALLSOFT specifically does not provide security services, encryption services or proactive intrusion detection services for any and all data used by MALLSOFT and CLIENT which could contain customer private information such as billing information, phone numbers, credit card number and banking information. CLIENT is solely responsible for providing security services protecting customer. A separate third party agreement is required for these services.

5.4 To the extent permitted by law, neither MALLSOFT nor its principals shall be liable to CLIENT or to any other person or entity for any damages, including incidental or consequential damages, loss of revenues or profits, or loss of benefit, arising out of the services provided under this InstaHost Agreement or resulting from the CLIENT’s use of or inability to use the services provided by MALLSOFT. In no event shall MALLSOFT be liable to CLIENT for any damages resulting from disruption in or malfunction of service due to fire, inclement weather, acts of God, theft or vandalism, or other causes beyond MALLSOFT’s control. MALLSOFT’s aggregate liability to CLIENT, if any, for any and all claims under this InstaHost Agreement shall not exceed the amounts paid to MALLSOFT by CLIENT during the most recent calendar year.

5.5 Disruption of or malfunction of services provided under this InstaHost Agreement shall not constitute default of this InstaHost Agreement.

5.6 IN THE EVENT THIS LIMITATION OF DAMAGES IS HELD UNENFORCEABLE, THEN THE PARTIES AGREE THAT BY REASON OF THE DIFFICULTY IN FORESEEING POSSIBLE DAMAGES ALL LIABILITY TO CLIENT SHALL BE LIMITED TO ONE HUNDRED DOLLARS ($100.00) AS LIQUIDATED DAMAGES AND NOT AS A PENALTY.

6. CLIENT’S DUTIES AND OBLIGATIONS


6.1 With respect to the terms of this InstaHost Agreement and the services provided to CLIENT herein, CLIENT agrees to comply with all applicable local, state and federal laws and regulations.

6.2 CLIENT shall not knowingly or unknowingly submit to MALLSOFT for publication any of the following material, including pictures, links, or any other content):

(a) Any material which violates or infringes any copyright, trademark, trade secret, patent, statutory, common law or other proprietary rights of others;
(b) Any material that is libelous or slanderous;
(c) Any material that is or contains anything obscene or pornographic; and
(d) Distributions lists to be used for unsolicited electronic mail or other mass electronic mailings.

6.3 All material submitted to MALLSOFT for publications will be considered publicly accessible due to the public nature of the Internet. MALLSOFT does not preview or edit material submitted by CLIENT unless specifically requested to do so. MALLSOFT’s publishing of CLIENT submissions does not create an express or implied approval by MALLSOFT of such material, nor does it indicate that such material complies with the terms of this InstaHost Agreement.

6.4 CLIENT agrees to indemnify, defend and hold harmless MALLSOFT and its principles from any and all claims, losses, liabilities and expenses (including attorneys’ fees and costs), whether based in contracts or tort, to the extent arising out or or resulting from (1) the CLIENT’s negligent acts, omissions or those acts or omissions of persons furnished by CLIENT, (2) the CLIENT’s failure to fully comply with the terms and conditions of this InstaHost Agreement, or (3) the CLIENT’s use of MALLSOFT’s services under this InstaHost Agreement, including without limitation claims made by third parties, relating to false advertisement, liability for products or services sold by CLIENT to third parties, or infringement on patents, copyrights or trademarks.

7. IP ADDRESSES

7.1 MALLSOFT maintains control and ownership of all IP numbers and addresses that may be assigned to CLIENT and reserves the right in its sole discretion to change or remove any and all IP numbers and addresses.

8. FEES AND COSTS

8.1 Fees for all services set shall be set forth in Exhibit “A” attached hereto and incorporated by reference.

8.2 All fees are based on usage for one domain name. Multiple domain names may result in multiple charges of the amounts set forth in Exhibit A.

8.3 Technical support shall be billed at the rates shown in Exhibit and shall be billed in minimum increments of 1/10th of an hour.

8.4 Costs incurred by MALLSOFT in the performance of services shall be charged to CLIENT.

9. INVOICE AND PAYMENT

9.1 CLIENT shall pay a deposit in the amount of 50% of the Estimated InstaHost Set Up fee upon execution of this InstaHost Agreement. MALLSOFT shall thereafter submit invoices to CLIENT on a biweekly basis until the InstaHost Set Up is complete. MALLSOFT reserves the right to refrain from turning on the web site until full payment has been made. The Estimated InstaHost Set Up fee is only an estimate, and the final fee may vary depending on the CLIENT’s service choices, complexities of the web site, the number of revisions required, CLIENT’s request for customization and other factors.

9.2 On or about the first day of each month following the commencement of services, MALLSOFT shall submit an invoice to CLIENT for InstaHost Basic Services Monthly Fees pursuant to this InstaHost Agreement.

9.3 Each billing period commences at 12:01 am PST on the first day of each month and ends at 12:00 pm PST on the last day of each month.

9.4 All invoices will be submitted to CLIENT by electronic mail. Upon CLIENT’s written requests, invoices shall be printed and delivered by United States Postal Service First Class to CLIENT’s address listed above.

9.5 CLIENT shall pay the invoice in full within 30 days of the invoice date. If CLIENT fails to pay the invoice in full within 30 days of the invoice date, this InstaHost Agreement shall be subject to termination as provided in Section 11 below, and a $25.00 penalty will be added to CLIENT’s bill for every week that the invoice remains unpaid.

9.6 In the event that CLIENT’s account is turned off or locked due to CLIENT’s failure to pay invoices and outstanding penalties in full within thirty (30) days of the invoice date, CLIENT account may be re-established and turned on only upon the satisfaction of the following requirements.

9.6.1 CLIENT shall pay all outstanding invoices and penalties owed to MALLSOFT; and
9.6.2 CLIENT shall pay a Security Deposit in an amount determined by MALLSOFT which shall be based on the CLIENT’s monthly service requirements.

9.7 CLIENT’s Security Deposit shall be held by MALLSOFT and shall be applied toward CLIENT’s final billing cycle. In the event that the Security Deposit exceeds the amount due during the last billing cycle, the balance of the Security Deposit shall be returned to CLIENT. The payment of a Security Deposit shall not be construed as a waiver of CLIENT’s obligation to pay invoices as required in Section 9.3. CLIENT’s continued failure to pay invoices in a timely manner shall subject this InstaHost Agreement to termination pursuant to Section 11 below.

9.8 Any materials submitted to MALLSOFT, electronic or otherwise, shall not be returned to CLIENT until full payment, including applicable penalties and set up charges have been received by MALLSOFT.

10. TERMINATION

10.1 This InstaHost Agreement may be terminated without notice (i) upon mutual agreement by the parties, or (ii) by MALLSOFT, upon CLIENT’s failure to pay fees within thirty (30) days of the invoice date, or (iii) by the non-defaulting party, upon default of the terms of this InstaHost Agreement by the other party.

10.2 MALLSOFT may, in its sole discretion, refrain from turning off CLIENT’s account. However, MALLSOFT’s decision in this regard shall not be construed as a waiver of any of CLIENT’s obligations under this InstaHost Agreement, including CLIENT’s obligation to pay invoices and penalties. MALLSOFT shall be entitled to turn off CLIENT’s account at any time during CLIENT’s default.

10.3 This InstaHost Agreement may be terminated by either party without cause with 30 days written notice. All outstanding fees owed to MALLSOFT shall be paid in full through the 30-day period following such notice.

10.4 All fees are nonrefundable.

11. ENTIRE AGREEMENT

11.1 This InstaHost Agreement supersedes any and all other agreements, either oral or in writing, between the parties hereto with respect to the subject matter hereof and no other agreement, statement, or promise relating to the subject matter of this InstaHost Agreement which is not contained herein shall be valid or binding.

12. ASSIGNMENT

12.1 Except as provided herein, neither this InstaHost Agreement nor any duties or obligations hereunder shall be assignable by either party without the prior written consent of the other party. In the event of an assignment by one party to which the other party has consented, the assignee or his legal representative shall agree in writing to personally assume, perform, and be bound by the covenants, obligations, and agreements contained herein.

13. SUCCESSORS AND ASSIGNS

13.1 Subject to the provisions regarding assignment, this InstaHost Agreement shall be binding on the heirs, executors, administrators, successors, and assigns of the respective parties.

14. NO IMPLIED WAIVER

14.1 The failure of either party at any time to require performance by the other party of any provision hereof shall not affect in any way the full right to require such performance at any time thereafter. Nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.

15. GOVERNING LAW

15.1 The validity of this InstaHost Agreement and of any of its terms or provisions, as well as the rights and duties of the parties under this InstaHost Agreement, shall be construed pursuant to and in accordance with the law of the state of California.

16. NOTICES AND REQUESTS

16.1 Any notice, demand, or request required or permitted to be given hereunder shall be in writing and shall be deemed effective twenty-four (24) hours after having been deposited in the United States mail, postage pre-paid, registered or certified, and addressed to the addressee at the principal office set forth above. Any party may change its address for purposes of this InstaHost Agreement by written notice given in accordance herewith.

17. MANDATORY ARBITRATION

17.1 Any claim, controversy, or dispute between MALLSOFT and CLIENT, arising out of or relating to this InstaHost Agreement, shall be resolved by mandatory arbitration. Either party may request arbitration if the procedures for dispute resolution under the above section are used and a resolution of the dispute cannot be agreed to. A neutral arbitrator agreeable to both parties will conduct the arbitration in accordance with the United States Arbitration Act (Title 9, U.S. Code). If the parties cannot agree on a neutral arbitrator, then the matter shall be referred to either the American Arbitration Association or the Judicial Arbitration and Mediation Services/Endispute Inc. (JAMS/Endispute). The arbitration will be conducted in the city of San Diego. Both parties shall have the right to conduct reasonable pre-hearing discovery. The arbitrator shall make a reasoned decision based on the laws of the State of California and shall prepare a written opinion stating the reasoning behind her or his decision. The award rendered by the arbitrator will be binding on both MALLSOFT and CLIENT. The judgment upon the award rendered by the arbitrator may be entered in any court (State or Federal) having jurisdiction over the parties. The prevailing party as determined by the arbitrator will be entitled to reimbursement for attorney's fees, expenses and costs of investigation, litigation, and arbitration from the other party.

17.2 THE PARTIES UNDERSTAND AND ACKNOWLEDGE THAT BY AGREEING TO THIS ARBITRATION PROVISION, THEY ARE GIVING UP THE RIGHT TO TRIAL BY JURY WITH RESPECT TO THIS INSTAHOST AGREEMENT, AND THEY HEREBY WAIVE SUCH RIGHT.

18. SEVERABILITY OF AGREEMENT

18.1 If any term of this InstaHost Agreement is held by a court of competent jurisdiction to be void or unenforceable, the remainder of the contract terms shall remain in full force and effect and shall not be affected.

19. AUTHORIZED AGENT OF CLIENT

19.1 The parties agree that the following person shall be authorized to act as the agent on behalf of CLIENT with regards to this InstaHost Agreement including (1) consenting to the terms of this InstaHost Agreement and any amendments hereto, (2) accepting and approving the services provided hereunder, (3) providing directions to MALLSOFT, (4) receiving communications from MALLSOFT, and (5) all other actions or communications that may be necessary to carry out the terms of this InstaHost Agreement.