Mella Hostings Terms of Service 1 (TOS1) You must agree to the below terms of service before you can create your MellaHosting account. You will not be permitted to make any purchases unless you agree to the below terms of service. Our terms of service (TOS1 and 2) are designed to provided to our customers a clear and transparent understanding of what we expect of them while they are using our service(s). The use of MellaHosting service(s) represents your acceptance and agreement to MellaHosting (TOS), regardless of whether you have read them or not. 1) Account Setup We will setup your account after we have received payment and we and/or our payment partner(s) have screened the order(s) incase of fraud. All new orders are usually activated within 24 hours. If you have not been activated within this time frame, please click here to contact our billing department. 2) Content & Activities All services provided by MellaHosting may only be used for lawful purposes. This includes, but not limited to: copyrighted material, material we judge to be threatening or obscene. The customer agrees to indemnify and hold harmless Mellahosing.com and AffiliSys LLC from any claims resulting from the use of our services. Examples of Totally Unacceptable material: IRC Bots. Warez Sites. MP3's (unless You are the Artist). Password sharing sites. Sites that run any type of proxy script. Pirated Software. Hacked programs and archives. 2.1) Distribution of Malicious Code: Intentional distributions of software that attempts to and/or causes damage, harassment, or annoyance to persons, data and/or computer systems are prohibited. Examples of this are computer viruses, Trojan-horse programs and Internet-based worms. Such an offense will result in the immediate termination of the offending account. 2.2) Infringement Infringement of Copyright, Patent, Trademark, Trade Secret, or Intellectual Property Right: Distribution and/or posting of copyrighted or the aforementioned infringements will not be tolerated. It is not permitted to use of the Mellahosting to transmit any material (by e-mail, uploading, posting or otherwise) that infringes any copyright, trademark, patent, trade secret or other proprietary rights of any third party, including, but not limited to, the unauthorized copying of copyrighted material, the digitization and distribution of photographs from magazines, books, or other copyrighted sources and the unauthorized transmittal of copyrighted software. 2.3) File Hosting File hosting and file storage of any type is strictly prohibited on any and all servers within the MellaHosting network. You MAY NOT use your MellaHosting account as a download or file storage repository. Our services are strictly offered for website hosting only. This does NOT mean that you can not have downloads on your site. This means you can not operate a site that specializes in downloads like Download.com or similar and you may not use your MellaHosting account as storage repository for MP3, games, video, audio or music files. Your account may not exceed 10% of used space in MP3, games, video, audio or music files. 2.4) Adult Sites Due to various legal and moral implications. MellaHosting does not permit sexually explicit material on any of its servers. If your site even resembles and/or implies any of this nature, your account will be terminated no CUSTOMER MASTER AGREEMENT This Customer MASTER Agreement (hereinafter referred to as the "Agreement") is made, entered into and executed on September 3, 2008 (hereinafter referred to as the "Effective Date") BETWEEN: - WHMCompleteSolution (hereinafter referred to as "Parent") AND you (hereinafter referred to as "Customer"). If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the term "Customer" shall refer to such entity. (The Parent and the Customer may be referred to individually as a "Party" and collectively as the "Parties"). WHEREAS the Parent provides various Products and Services; AND WHEREAS the Customer wishes to purchase Parent's Products and Services NOW, THEREFORE, for and in consideration of the mutual promises, benefits and covenants contained herein and for other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged, Parent and the Customer, intending to be legally bound, hereby agree as follows: 1. DEFINITIONS (1) "Advance Account" refers to the credit balance maintained by the Customer with the Parent. (2) "Business Day" refers to a working day between Mondays to Friday excluding all Public Holidays. (3) "Clear Balance" refers to credit in the Customer Advance Account after deducting any accrued liabilities, Locked Funds and debited amounts. (4) "Confidential Information", as used in this Agreement shall mean all data, information and materials including, without limitation, computer software, data, information, databases, protocols, reference implementation, documentation, functional and interface specifications, provided by Parent to the Customer under this Agreement, whether written, transmitted, oral, through the Parent Website or otherwise, that is marked as Confidential. (5) "Customer Contact Details" refers to the Contact Details of the Customer as listed in the OrderBox Database (6) "Customer Control Panel" refers to the set of Web-based interfaces provided by the Parent and its Service Providers to the Customer which allows him to Manage Orders (7) "Customer Product Agreement Extension" refers to the latest version of a Specific Customer Product Agreement Extension as posted in the Customer Control Panel or on the Parent Website. (8) "OrderBox" refers to the set of Servers, Software, Interfaces, Parent Products and API that is provided for use directly or indirectly under this Agreement by the Parent and/or its Service Providers. (9) "OrderBox Database" is the collection of data elements stored on the OrderBox Servers. (10) "OrderBox Servers" refer to Machines / Servers that Parent or its Service Providers maintain to fulfill services and operations of the OrderBox (11) "OrderBox User" refers to the Customer and any Agent, Employee, Contractee of the Customer or any other Legal Entity, that has been provided access to the "OrderBox" by the Customer, directly or indirectly. (12) "Order" refers to a Parent Product purchased by the Customer having a unique Order ID in the OrderBox Database. (13) "Parent Products" refer to all Products and Services of Parent which it has provided/rendered/sold, or is providing/rendering/selling. (14) "Parent Servers" refer to web servers, Mailing List Servers, Database Servers, OrderBox Servers and any other Machines / Servers that Parent or its Service Providers Operate, for the OrderBox, the Parent Website, the Parent Mailing Lists, Parent Products and any other operations required to fulfill services and operations of Parent. (15) "Parent Website" refers to domains.whmcs.com (16) "Service Providers" refers individually and collectively to any Artificial Juridical Persons, Company, Concern, Corporation, Enterprise, Firm, Individual, Institute, Institution, Organization, Person, Society, Trust or any other Legal Entity that Parent or its Service Providers (recursively) may, directly or indirectly, Engage / Employ / Outsource / Contract for the fulfillment / provision / purchase of Parent Products, OrderBox, and any other services and operations of Parent. 2. CUSTOMER PRODUCT AGREEMENT EXTENSIONS (1) The Customer may purchase various Parent Products in the course of their relationship with Parent under this agreement. by submitting to Parent, in a form and manner prescribed by Parent, one or more Customer Product Agreement Extensions, which shall then be included as a part of this Agreement. (2) Any conflicting definitions, terms and conditions in a Customer Product Agreement Extension shall take precedence over the same definition, terms and conditions in this Agreement, and shall be applied only to that Customer Product Agreement Extension. 3. OBLIGATIONS OF PARENT Parent shall make available the latest versions of this Agreement and Customer Product Agreement Extensions in the Customer Control Panel or on the Parent Website. 4. OBLIGATIONS OF THE CUSTOMER (1) The Customer acknowledges that in the event of any dispute and/or discrepancy concerning any data element of an Order or the Customer in the OrderBox Database, the data element in the OrderBox Database records shall prevail. (2) The Customer acknowledges that all information of the Customer in the OrderBox, including authentication information is accessible to Parent and its Service Providers (3) The Customer shall comply with all terms or conditions established by Parent and/or its Service Providers from time to time. (4) The Customer agree to provide, maintain and update, current, complete and accurate information for all the data elements about the Customer in the OrderBox Database. (5) Customer acknowledges that Parent Products maybe obtained through Service Providers, and as such, changes in structure, or contracts may occur, and as a result services may be adversely affected. Customer acknowledges and agrees that Parent shall not have any liability associated with any such. (6) During the term of this Agreement and for three years thereafter, the Customer shall maintain the following records relating to its dealings with Parent and their Agents or Authorized Representatives: - (1) In electronic, paper or microfilm form, all written communications with respect to Parent Products. (2) In electronic form, records of the accounts of all, current / past Orders with the Customer, including dates and amounts of all payments, discount, credits and refunds. The Customer shall make these records available for inspection by Parent upon reasonable notice not exceeding 14 days. 5. REPRESENTATIONS AND WARRANTIES Parent and Customer represent and warrant that: - (1) they have all requisite power and authority to execute, deliver and perform their obligations under this Agreement; (2) This Agreement has been duly and validly executed and delivered and constitutes a legal, valid and binding obligation, enforceable against the Reseller and Parent in accordance with its terms; (3) The execution, delivery, and performance of this Agreement and the consummation by Parent and the Reseller of the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate: - (1) any provision of law, rule, or regulation; (2) any order, judgment, or decree; (3) any provision of corporate by-laws or other documents; or (4) any agreement or other instrument. (4) the execution, performance and delivery of this Agreement has been duly authorized by the Customer and Parent; (5) No consent, approval, or authorization of, or exemption by, or filing with, any governmental authority or any third party is required to be obtained or made in connection with the execution, delivery, and performance of this Agreement or the taking of any other action contemplated hereby; The Customer represents and warrants that: (1) the Customer has read and understood every clause of this Agreement (2) the Customer has independently evaluated the desirability of the service and is not relying on any representation agreement, guarantee or statement other than as set forth in this agreement; and (3) the Customer is eligible, to enter into this Contract according to the laws of his country 6. RIGHTS OF PARENT AND SERVICE PROVIDERS (1) Parent and Service Providers may change any information, including Authentication Information of the Customer in the OrderBox Database upon receiving authorization from the Customer in any form as maybe prescribed by Parent from time to time. (2) Parent and Service Providers may provide/send any information in the OrderBox Database, about the Customer, including Authentication information (1) to the Customer Contact Details (2) to any authorised representative, agent, contractee, employee of the Customer upon receiving authorization in any form as maybe prescribed by Parent from time to time (3) to the Service Providers (3) Parent and Service Providers in its own discretion can at any point of time temporarily or permanently cease to sell a Parent Product (4) Parent reserves the right to change pricing, minimum order levels, and discounts, of any Parent Product , at any time. (5) Parent and Service Providers, in their sole discretion, expressly reserve the right to deny any Order or cancel an Order within 30 days of processing the same. In such case Parent may refund the fees charged for the Order, after deducting any processing charges for the same. (6) Parent and Service Providers, in their sole discretion, without notice, expressly reserve the right to modify, upgrade, freeze the OrderBox, and its associated Services. (7) Parent and Service Providers, in their sole discretion, expressly reserve the right to without notice or refund, delete, suspend, deny, cancel, modify, take ownership of or transfer any Order, or to delete, Suspend, freeze, modify OrderBox Users' access to OrderBox, or to modify, upgrade, suspend, freeze OrderBox, in order to recover any Payment from the Customer for any service rendered by the Parent including services rendered outside the scope of this agreement, or to correct mistakes made by Parent or its Service Providers in processing or executing an Order, or incase of any breach of this agreement, or incase of violation of any Terms listed in all the Appendices, or incase Parent learns of a possibility of breach or violation of this agreement or its appendices which Parent in its sole discretion determines to be appropriate, or incase of Termination of this agreement, or if Parent learns of any such event which Parent reasonably determines would lead to Termination of this Agreement or would constitute as Breach thereof, or to protect the integrity and stability of the Parent Products and the OrderBox, or to comply with any applicable laws, government rules or requirements, requests of law enforcement, or in compliance with any dispute resolution process, or in compliance with any agreements executed by Parent, or to avoid any liability, civil or criminal, on the part of Parent and/or Service Providers, as well as their affiliates, subsidiaries, officers, directors and employees, or if the Customer and/or its Agents or any other authorised representatives of the Customer violate any applicable laws/government rules/usage policies, including but not limited to, intellectual property, copyright, patent, anti-spam, or Parent learns of the possibility of any such violation, or authorisation from the Customer in any manner that Parent deems satisfactory, or for any appropriate reason. The Customer agrees that Parent and Service Providers, and the contractors, employees, directors, officers, representatives, agents and affiliates, of Parent and Service Providers, are not liable for loss or damages that may result from any of the above. (8) Incase of Orders involving web services, Parent and Service Providers can choose to redirect any Order to any IP Address including, without limitation, to an IP address which hosts a parking page or a commercial search engine for the purpose of monetization, if an Order has expired, or is suspended, or does not contain valid information to direct it to any destination. Customer acknowledges that Parent and Service Providers cannot and do not check to see whether such a redirection, infringes any legal rights including but not limited to intellectual property rights, privacy rights, trademark rights, of Customer, or that the content displayed due to such redirection is inappropriate, or in violation of any federal, state or local rule, regulation or law, or injurious to Customer or any third party, or their reputation and as such is not responsible for any damages caused directly or indirectly as a result of such redirection. (9) Parent has the right to rectify any mistakes in the data in the OrderBox Database with retrospective effect. 7. TERM OF AGREEMENT AND RENEWAL The term of this Agreement shall be 1 (ONE) YEAR from the Effective Date and will automatically renew for successive 1 (ONE) YEAR Renewal Term (hereinafter referred to each a "Renewal Term" and cumulatively the "Term"). The Term shall continue until the earlier to occur of the following: (1) the Agreement is terminated as provided for in Section 8 (TERMINATION OF AGREEMENT); and (2) The Customer elects not to renew at the end of the Initial Term or any Renewal Term. 8. TERMINATION OF AGREEMENT (1) Either Party may terminate this Agreement and/or any Customer Product Agreement Extension at any time by (1) giving a 30 (Thirty) days written notice of termination delivered as per Section 24 (NOTICE). (2) With immediate effect, if the other Party is adjudged insolvent or bankrupt, or if proceedings are instituted by or against a Party seeking relief, reorganization or arrangement or compromise or settlement under any laws relating to insolvency, or seeking any assignment for the benefit of creditors, or seeking the appointment of a receiver, liquidator or trustee of a Party's property or assets or the liquidation, dissolution or winding up of a Party's Business. (2) Parent may Terminate this Agreement and/or any Customer Product Agreement Extension by notifying the Customer in writing, as of the date specified in such notice of termination under the following circumstances (1) In the event that the Customer or an Agent / Employee / Authorized Representative of the Customer materially breaches any term of this Agreement and/or any Customer Product Agreement Extension, including any of its representations, warranties, covenants and agreements hereunder (2) There was a material misrepresentation and/or material inaccuracy, and/or materially misleading statement in Customer's Application to Parent and/or any material accompanying the application. (3) With immediate effect if : - (1) the Customer is convicted of a felony or other serious offense related to financial activities, or is judged by a court to have committed fraud or breach of fiduciary duty, or is the subject of a judicial determination that Parent reasonably deems as the substantive equivalent of any of these; or (2) the Customer is disciplined by the government of its domicile for conduct involving dishonesty or misuse of funds of others. (3) as provided for in Appendix 'A' and Appendix 'C' (4) if Any officer or director of the Customer is convicted of a felony or of a misdemeanor related to financial activities, or is judged by a court to have committed fraud or breach of fiduciary duty, or is the subject of a judicial determination that Parent deems as the substantive equivalent of any of these; (3) Customer may Terminate this Agreement and/or any Customer Product Agreement Extension by notifying Parent in writing, as of the date of receipt of such notice, in the event that the Customer does not agree with any revision to the Agreement or any Customer Product Agreement Extension made as per Section 14 (RIGHT TO SUBSTITUTE UPDATED AGREEMENT AND Customer Product Agreement EXTENSIONS) within 30 days of such revision. (4) Any Product Agreement Extension shall terminate with immediate effect in the event that (1) Parent ceases to sell the particular Parent Product covered under that Product Agreement Extension (2) Parents contract with Service Provider for the particular Parent Product terminates or expires without renewal (5) Effect of Termination of this Agreement (1) Parent shall suspend all OrderBox Users' access to the OrderBox, Parent Servers and all Parent Products and Services, under this agreement and all Customer Product Agreement Extensions, immediately upon receiving Termination notice from the Customer or upon learning of any event, which Parent reasonably determines, would lead to Termination of the Agreement. (2) Upon expiration or termination of this Agreement, all Customer Product Agreement Extensions signed by the Customer shall deemed to have been Terminated with immediate effect (3) Upon expiration or termination of this Agreement, Parent may complete the processing of all Orders requested to be processed, in the order that they were requested to be processed, by the Customer prior to the date of such expiration or termination, provided that the Customer's Advance Account with Parent has Clear Balance sufficient to carry out these Orders. If Parent is unable to fulfill these Orders then the charges levied to the Customer for these Orders will be reversed (6) Effect of Termination of any Customer Product Agreement Extension (1) Parent may suspend OrderBox Users' access to applicable Parent Products and Services , and the OrderBox immediately upon receiving Termination notice from the Customer or upon learning of any event, which Parent reasonably determines, would lead to Termination of any Customer Product Agreement Extension (2) Upon expiration or termination of any Customer Product Agreement Extension, Parent may complete the processing of all Orders, of that Parent Product, in the order that they were requested to be processed, by the Reseller prior to the date of such expiration or termination, provided that Parent is in a position to fulfill these Orders, and the Customer's Advance Account with Parent has Clear Balance sufficient to carry out these Orders. If Parent is unable to fulfill these Orders then the charges levied to the Customer for these Orders will be reversed (3) Parent may transfer all Orders falling under the purview of the specific Customer Product Agreement Extension to another Customer or Parent. (7) Any pending balance due from the Customer at the time of termination of this Agreement or any Customer Product Agreement Extension will be immediately payable. (8) Neither Party shall be liable to the other for damages of any sort resulting solely from terminating this Agreement or any Customer Product Agreement Extension in accordance with its terms, unless specified otherwise.The Customer however shall be liable for any damage arising from any breach by it of this Agreement or any Customer Product Agreement Extension. 9. FEES / RENEWAL (1) Customer shall pay all applicable fees/advances as per the Payment Terms and Conditions set out in Appendix 'C' (2) Parent will charge a non-refundable fee for an Order unless stated otherwise in any Product Agreement Extension. The applicable fees will be displayed in the Customer Control Panel or on the Parent Website and during the Ordering Process. Parent has the right to revise this pricing at anytime. Any such revision or change will be binding and effective immediately on posting of the revision in the Customer Control Panel or on the Parent Website or on notification to the Customer via email to the Customer. (3) Customer acknowledges that it is the Customer's responsibility to keep records and maintain reminders regarding the expiry of any Order. As a convenience to the Customer, and not as a binding commitment, we may notify the Customer of any expiring Orders, via an email message sent to the contact information associated with the Customer in the OrderBox database. Should renewal fees go unpaid for an Order, the Order will expire. (4) Customer acknowledges that after expiration of the term of an Order, Customer has no rights on such Order, or any information associated with such Order, and that ownership of such Order now passes on to Parent. Parent and Service Providers may make any modifications to said Order or any information associated with said Order. Parent and Service Providers may intercept any network/communication requests to such Order and process them in any manner in their sole discretion. Parent and Service Providers may choose to monetize such requests in any fashion at their sole discretion. Parent and Service Providers may choose to display any appropriate message, and/or send any response to any user making a network/communication request, for or concerning said Order. Parent and Service Providers may choose to delete said Order at anytime after expiry upon their sole discretion. Parent and Service Providers may choose to transfer the ownership of the Order to any third party in their sole discretion. Customer acknowledges that Parent and Service Providers shall not liable to Customer or any third party for any action performed under this clause. (5) Parent at its sole discretion may allow the renewal of the Order after Order expiry, and such renewal term will start as on the date of expiry of the Order, unless otherwise specified. Such process may be charged separately. Such renewal after the expiry of the Order may not result in exact reinstatement of the Order in the same form as it was prior to expiry. (6) Parent makes no guarantees about the number of days, after deletion of an Order, after which the same Order will once again become available for purchase. 10. LIMITATION OF LIABILITY IN NO EVENT WILL PARENT OR SERVICE PROVIDERS OR CONTRACTORS OR THIRD PARTY BENEFICIARIES BE LIABLE TO THE CUSTOMER FOR ANY LOSS OF REGISTRATION AND USE OF DOMAIN NAME, OR FOR INTERRUPTIONS OF BUSINESS, OR ANY SPECIAL, INDIRECT, ANCILLARY, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES RESULTING FROM LOSS OF PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF PARENT AND/OR ITS SERVICE PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PARENT FURTHER DISCLAIMS ANY AND ALL LOSS OR LIABILITY RESULTING FROM, BUT NOT LIMITED TO: (1) LOSS OR LIABILITY RESULTING FROM THE UNAUTHORIZED USE OR MISUSE OF AUTHENTICATION INFORMATION; (2) LOSS OR LIABILITY RESULTING FROM FORCE MAJEURE EVENTS; (3) LOSS OR LIABILITY RESULTING FROM ACCESS DELAYS OR ACCESS INTERRUPTIONS; (4) LOSS OR LIABILITY RESULTING FROM NON-DELIVERY OF DATA OR DATA MISS-DELIVERY; (5) LOSS OR LIABILITY RESULTING FROM ERRORS, OMISSIONS, OR MISSTATEMENTS IN ANY AND ALL INFORMATION OR PARENT PRODUCT(S) PROVIDED UNDER THIS AGREEMENT; (6) LOSS OR LIABILITY RESULTING FROM THE INTERRUPTION OF SERVICE. If any legal action or other legal proceeding (including arbitration) relating to the performance under this Agreement or the enforcement of any provision of this Agreement is brought against Parent by the Customer, then in no event will the liability of Parent exceed actual amount paid to Parent by the Customer for the Order in question minus direct expenses incurred with respect to that Order. BOTH PARTIES ACKNOWLEDGE THAT THE CONSIDERATION AGREED UPON BY THE PARTIES IS BASED IN PART UPON THESE LIMITATIONS, AND THAT THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. IN NO EVENT WILL THE LIABILITY OF THE PARENT RELATING TO THIS AGREEMENT EXCEED TOTAL AMOUNT PAID TO PARENT BY THE CUSTOMER DURING THE MOST RECENT THREE (3) MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY. 11. INDEMNIFICATION (1) The Customer, at their own expense, will indemnify, defend and hold harmless, Parent, Service Providers, and the contactors, employees, directors, officers, representatives, agents and affiliates, of Parent, and Service Providers, against any claim, suit, action, or other proceeding brought against Parent or Service Providers based on or arising from any claim or alleged claim, of third parties relating to or arising under this Agreement, Parent Products provided hereunder or use of the Parent Products, including without limitation:- (1) infringement by either the Customer, or someone else using a Parent Product with the Customer's computer, of any intellectual property or other proprietary right of any person or entity (2) arising out of any breach by the Customer of this Agreement. (3) relating to or arising out of any Order or use of any Order (4) relating to any action of Parent as permitted by this Agreement (5) relating to any action of Parent carried out on behalf of Customer as described in this Agreement (2) Parent will not enter into any settlement or compromise of any such indemnifiable claim without Customer's prior written consent, which shall not be unreasonably withheld. (3) The Customer will pay any and all costs, damages, and expenses, including, but not limited to, actual attorneys' fees and costs awarded against or otherwise incurred by Parent in connection with or arising from any such indemnifiable claim, suit, action or proceeding. 12. INTELLECTUAL PROPERTY Subject to the provisions of this Agreement, each Party will continue to independently own his/her/its intellectual property, including all patents, trademarks, trade names, domain names, service marks, copyrights, trade secrets, proprietary processes and all other forms of intellectual property. Any improvements to existing intellectual property will continue to be owned by the Party already holding such intellectual property. Without limiting the generality of the foregoing, no commercial use rights or any licenses under any patent, patent application, copyright, trademark, know-how, trade secret, or any other intellectual proprietary rights are granted by Parent to the Customer, or by any disclosure of any Confidential Information to the Customer under this Agreement. Customer shall further ensure that the Customer does not infringe any intellectual property rights or other rights of any person or entity, or does not publish any content that is libelous or illegal while using services under this Agreement. Customer acknowledges that Parent cannot and does not check to see whether any services or the use of the services by the Reseller under this Agreement, infringes legal rights of others. 13. OWNERSHIP AND USE OF DATA (1) Customer agrees and acknowledges that Parent owns all data, compilation, collective and similar rights, title and interests worldwide in the OrderBox Database, and all information and derivative works generated from the OrderBox Database. (2) Parent and Service Providers and their designees/agents have the right to backup, copy, publish, disclose, use, sell, modify, process this data in any form and manner as maybe required for compliance of any agreements executed by Parent or Service Providers, or in order to fulfill services under this Agreement, or for any other appropriate reason. 14. DELAYS OR OMISSIONS; WAIVERS No failure on the part of any Party to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of any Party in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege or remedy; and no single or partial exercise or waiver of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy. No Party shall be deemed to have waived any claim arising out of this Agreement, or any power, right, privilege or remedy under this Agreement, unless the waiver of such claim, power, right, privilege or remedy is expressly set forth in a written instrument duly executed and delivered on behalf of such Party; and any such waiver shall not be applicable or have any effect except in the specific instance in which it is given. No waiver of any of the provisions of this Agreement shall be deemed to constitute a waiver of any other provision (whether or not similar), nor shall such waiver constitute a waiver or continuing waiver unless otherwise expressly provided in writing duly executed and delivered. 15. RIGHT TO SUBSTITUTE UPDATED AGREEMENT (1) During the period of this Agreement, the Customer agrees that Parent may: - (1) revise the terms and conditions of this Agreement; and (2) change the services provided under this Agreement (2) Any such revision or change will be binding and effective immediately on posting of the revision in the Customer Control Panel or on the Parent Website (3) The Customer agrees to review the Customer Control Panel and Parent Website including the agreements, periodically, to be aware of any such revisions (4) If the Customer does not agree with any revision, the Customer may terminate this Agreement according to Section 8(3) of this Agreement (5) The Customer agrees that, continuing use of the services under this Agreement following notice of any revision, will constitute as an acceptance of any such revisions or changes (6) The Customer shall execute, in a form and manner prescribed by Parent, a supplementary agreement incorporating the amendments to or revisions of the Agreement and/or Customer Product Agreem Mella Hostings Website Terms of Service 2 (TOS2) You must agree to the below terms of service before you can create your MellaHosting account. You will not be permitted to make any purchases unless you agree to the below terms of service. Our terms of service (TOS) are designed to provided to our customers a clear and transparent understanding of what we expect of them while they are using our service(s). The use of MellaHosting service(s) represents your acceptance and agreement to MellaHosting (TOS), regardless of whether you have read them or not. 1) Copyright You are not to Copy any of our pictures, Information or Layout of our entire Website. All rights are reserved to Mella Hosting Internet Solutions. 2) Spam We dont like Spamming, if you are visiting our Website or are one of our Customers, we request you do not send us Email by way through our Support center or other wise. No junk mail at all Thank you. If we do recieve such Junk, we will either or both, Ban your IP address, and Or Cancel your Account. 3) Price Changes We at Mella Hosting have the right to Update/Change our Pricing system for any of our products at any time without notice as we see fit. Although we will Email our Clients of any changes that will affect them. We have the sole right to make altarations anytime without complaints. 4) Cancellations We can cancel or termanate any account without reason, Please be sure to read out TOS1 for any additional Information. We expect all our clients to apply our TOS while being clients of ours. Mella Hosting Web Site Agreement The Mella Hosting and Internet Solutions Web Site (the "Site") is an online information service provided by Mella Hosting ("Mella Hosting and Internet Solutions "), subject to your compliance with the terms and conditions set forth below. PLEASE READ THIS DOCUMENT CAREFULLY BEFORE ACCESSING OR USING THE SITE. BY ACCESSING OR USING THE SITE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH BELOW. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS AND CONDITIONS, YOU MAY NOT ACCESS OR USE THE SITE. Mella Hosting and Internet Solutions MAY MODIFY THIS AGREEMENT AT ANY TIME, AND SUCH MODIFICATIONS SHALL BE EFFECTIVE IMMEDIATELY UPON POSTING OF THE MODIFIED AGREEMENT ON THE SITE. YOU AGREE TO REVIEW THE AGREEMENT PERIODICALLY TO BE AWARE OF SUCH MODIFICATIONS AND YOUR CONTINUED ACCESS OR USE OF THE SITE SHALL BE DEEMED YOUR CONCLUSIVE ACCEPTANCE OF THE MODIFIED AGREEMENT. 1. Copyright, Licenses and Idea Submissions. The entire contents of the Site are protected by international copyright and trademark laws. The owner of the copyrights and trademarks are Mella Hosting and Internet Solutions, its affiliates or other third party licensors. YOU MAY NOT MODIFY, COPY, REPRODUCE, REPUBLISH, UPLOAD, POST, TRANSMIT, OR DISTRIBUTE, IN ANY MANNER, THE MATERIAL ON THE SITE, INCLUDING TEXT, GRAPHICS, CODE AND/OR SOFTWARE. You may print and download portions of material from the different areas of the Site solely for your own non-commercial use provided that you agree not to change or delete any copyright or proprietary notices from the materials. You agree to grant to Mella Hosting and Internet Solutions a non-exclusive, royalty-free, worldwide, perpetual license, with the right to sub-license, to reproduce, distribute, transmit, create derivative works of, publicly display and publicly perform any materials and other information (including, without limitation, ideas contained therein for new or improved products and services) you submit to any public areas of the Site (such as bulletin boards, forums and newsgroups) or by e-mail to Mella Hosting and Internet Solutions by all means and in any media now known or hereafter developed. You also grant to Mella Hosting and Internet Solutions the right to use your name in connection with the submitted materials and other information as well as in connection with all advertising, marketing and promotional material related thereto. You agree that you shall have no recourse against Mella Hosting and Internet Solutions for any alleged or actual infringement or misappropriation of any proprietary right in your communications to Mella Hosting and Internet Solutions. TRADEMARKS. Publications, products, content or services referenced herein or on the Site are the exclusive trademarks or servicemarks of Mella Hosting and Internet Solutions. Other product and company names mentioned in the Site may be the trademarks of their respective owners. 2. Use of the Site. You understand that, except for information, products or services clearly identified as being supplied by Mella Hosting and Internet Solutions, Mella Hosting and Internet Solutionsdoes not operate, control or endorse any information, products or services on the Internet in any way. Except for Mella Hosting and Internet Solutions- identified information, products or services, all information, products and services offered through the Site or on the Internet generally are offered by third parties, that are not affiliated with Mella Hosting and Internet Solutions a. You also understand that Mella Hosting and Internet Solutions cannot and does not guarantee or warrant that files available for downloading through the Site will be free of infection or viruses, worms, Trojan horses or other code that manifest contaminating or destructive properties. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for accuracy of data input and output, and for maintaining a means external to the Site for the reconstruction of any lost data. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SITE AND THE INTERNET. Mella Hosting and Internet Solutions PROVIDES THE SITE AND RELATED INFORMATION "AS IS" AND DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS WHATSOEVER (INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE OR NONINFRINGEMENT, OR THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) WITH REGARD TO THE SERVICE, ANY MERCHANDISE INFORMATION OR SERVICE PROVIDED THROUGH THE SERVICE OR ON THE INTERNET GENERALLY, AND Mella Hosting and Internet Solutions SHALL NOT BE LIABLE FOR ANY COST OR DAMAGE ARISING EITHER DIRECTLY OR INDIRECTLY FROM ANY SUCH TRANSACTION. IT IS SOLELY YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS AND USEFULNESS OF ALL OPINIONS, ADVICE, SERVICES, MERCHANDISE AND OTHER INFORMATION PROVIDED THROUGH THE SERVICE OR ON THE INTERNET GENERALLY. Mella Hosting and Internet Solutions DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE SERVICE WILL BE CORRECTED. YOU UNDERSTAND FURTHER THAT THE PURE NATURE OF THE INTERNET CONTAINS UNEDITED MATERIALS SOME OF WHICH ARE SEXUALLY EXPLICIT OR MAY BE OFFENSIVE TO YOU. YOUR ACCESS TO SUCH MATERIALS IS AT YOUR RISK. Mella Hosting and Internet Solutions HAS NO CONTROL OVER AND ACCEPTS NO RESPONSIBILITY WHATSOEVER FOR SUCH MATERIALS. LIMITATION OF LIABILITY IN NO EVENT WILL Mella Hosting and Internet Solutions BE LIABLE FOR (I) ANY INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR INFORMATION, AND THE LIKE) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICE, OR ANY INFORMATION, OR TRANSACTIONS PROVIDED ON THE SERVICE, OR DOWNLOADED FROM THE SERVICE, OR ANY DELAY OF SUCH INFORMATION OR SERVICE. EVEN IF Mella Hosting and Internet Solutions OR ITS AUTHORIZED REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (II) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE SERVICE AND/OR MATERIALS OR INFORMATION DOWNLOADED THROUGH THE SERVICE. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN SUCH STATES, Mella Hosting and Internet Solutions LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. Mella Hosting and Internet Solutions makes no representations whatsoever about any other web site which you may access through this one or which may link to this Site. When you access a non-Mella Hosting and Internet Solutions web site, please understand that it is independent from Mella Hosting and Internet Solutions, and that Mella Hosting and Internet Solutions has no control over the content on that web site. In addition, a link to a Mella Hosting and Internet Solutions web site does not mean that Mella Hosting and Internet Solutions endorses or accepts any responsibility for the content, or the use, of such web site. 3. Indemnification. You agree to indemnify, defend and hold harmless Mella Hosting and Internet Solutions, its officers, directors, employees, agents, licensors, suppliers and any third party information providers to the Service from and against all losses, expenses, damages and costs, including reasonable attorneys' fees, resulting from any violation of this Agreement (including negligent or wrongful conduct) by you or any other person accessing the Service. 4. Third Party Rights. The provisions of paragraphs 2 (Use of the Service), and 3 (Indemnification) are for the benefit of Mella Hosting and Internet Solutions and its officers, directors, employees, agents, licensors, suppliers, and any third party information providers to the Service. Each of these individuals or entities shall have the right to assert and enforce those provisions directly against you on its own behalf. 5.Term; Termination. This Agreement may be terminated by either party without notice at any time for any reason. The provisions of paragraphs 1 (Copyright, Licenses and Idea Submissions), 2 (Use of the Service), 3 (Indemnification), 4 (Third Party Rights) and 6 (Miscellaneous) shall survive any termination of this Agreement. 6.Miscellaneous. This Agreement shall all be governed and construed in accordance with the laws of Australia applicable to agreements made and to be performed in Australia. You agree that any legal action or proceeding between Mella Hosting and Internet Solutions and you for any purpose concerning this Agreement or the parties' obligations hereunder shall be brought exclusively in a federal or state court of competent jurisdiction sitting in Australia . Any cause of action or claim you may have with respect to the Service must be commenced within one (1) year after the claim or cause of action arises or such claim or cause of action is barred. Mella Hosting and Internet Solutions's failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any provision of this Agreement. Mella Hosting and Internet Solutions may assign its rights and duties under this Agreement to any party at any time without notice to you. Any rights not expressly granted herein are reserved.