USDV TOS - TERMS OF SERVICE

US DataVault, Inc., (USDV) agrees to furnish services to the Client, subject to the following Terms of Service (TOS).

Use of USDV Networks constitutes acceptance and agreement to USDV's AUP and TOS (Terms of Service).

All provisions of USDV Agreements are subject to the TOS (Terms of Service) and AUP (Acceptable Use Policy) of USDV. The AUP may be changed from time to time at the discretion of the Company. Client understands that changes to the TOS or AUP by the Company shall not be grounds for early contract termination or non-payment.

This Agreement shall be construed in all respects in accordance with the laws of the state of Tennessee, County of Davidson, applicable to contracts enforceable in that state. Venue for all legal actions pursuant to this Agreement will be Davidson County, Tennessee.

a.        Disclosure to Law Enforcement:

The AUP specifically prohibits the use of our network for illegal or allegedly illegal activities. Therefore, Client agrees that the Company may disclose any and all Client information including assigned IP numbers, account history, account use, etc. to any law enforcement agent who makes a written request, without further consent or notification to the Client. In addition USDV shall cooperate with all law enforcement authorities and has the right to terminate all such Client services set forth in this Agreement which are the subject of law enforcement.

b.        Service Rates:

Client acknowledges that the nature of the services furnished by USDV and the initial rates and charges therefore, including but not limited to USDV fees and other outside expenses required for Client to utilize USDV services (i.e.: greater capacity Internet connections), have been communicated to Client and said Client understands the purpose and need for the requirement and associated fees. Client is aware that USDV may prospectively change its specified rates and charges from time to time. (Agents and Resellers ONLY: ALL promotional offers are contingent upon Company achieving and maintaining its cost of service goals, including but not limited to rates charged to Company by its suppliers.)

c.        Payment:

Establishment of this service is dependent upon receipt by the Company of advance payment of stated charges. Subsequent payments are due on the anniversary date of the month for that next month's service. All accounts and services provided by USDV, including 100% of any setup fees, are subject to all applicable taxes. The above applies to all accounts and services provided by USDV. Discounted arrangements are available for Annual or Semi Annual payment options.

Accounts not paid within 5 days of the due date shall be suspended without notice until all balances are paid in full.

d.        Payments and Fees:

If used for payment, credit cards that are declined for any reason are subject to a $30.00 declination fee. Service will be interrupted on accounts that reach 5 days past due. Restoration of services interrupted for nonpayment is subject to a $100 reconnect charge. Accounts not paid by due date are subject to a late charges of one and one-half percent (1.5%) per month, or the highest amount permitted by applicable law, whichever is less, and shall be due and payable with respect to such payment. No services will be restored without payment of all outstanding balances, in full.

Accounts that are not collectable by USDV may be turned over to an outside collection agency for collection. If your account is turned over for collection, you agree to pay the company a "Processing and Collection" Fee of not less than $50 or more than $350. If you desire to cancel your account, please follow the proper procedure to do this as outlined in Section Q of this TOS.

e.        Refunds and Disputes:

All payments to USDV are IN ADVANCE and are nonrefundable. This includes any one time setup fees and/or subsequent charges as required for USDV to provide the Client with contracted services, regardless of usage. All perceived overcharges or billing disputes must be reported within 45 days of the time the dispute occurred. If you dispute a charge to your credit card issuer that is decided in favor of USDV, and is a valid charge under the provisions of the TOS and/or AUP, you agree to pay USDV an "Administrative Fee" of not less than $300.

f.        Failure to Pay:

The Company may temporarily deny service or terminate this Agreement upon the failure of Client to pay charges when due. Such termination or denial will not relieve Client of responsibility for the payment of all accrued charges, plus reasonable interest and any collection fees.

g.        Limitation of Warranties and Liability; Disclaimer of Warranties.

CLIENT EXPRESSLY AGREES THAT USE OF THE SERVICE IS AT CLIENT'S SOLE RISK. NEITHER US DataVault, Inc, (USDV), NOR ANY OF ITS UNDERLYING SERVICE PROVIDERS, INFORMATION PROVIDERS, LICENSORS, EMPLOYEES, OR AGENTS WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES USDV OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, INFORMATION PROVIDERS, LICENSORS, EMPLOYEES, OR AGENTS MAKE ANY WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE SERVICE. IT IS FURTHER UNDERSTOOD THAT IN NO WAY IS USDV OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, INFORMATION PROVIDERS, LICENSORS, EMPLOYEES, OR AGENTS RESPONSIBLE FOR ANY LOSS OF CLIENT DATA. THE SERVICE IS PROVIDED ON AN "AS IS", "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE, OTHER THAN THOSE WARRANTIES (IF ANY) WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION, OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS SERVICE AGREEMENT, ALL SUCH WARRANTIES BEING EXPRESSLY DISCLAIMED. NEITHER USDV NOR ANY OF ITS UNDERLYING SERVICE PROVIDERS, INFORMATION PROVIDERS, LICENSORS, EMPLOYEES, OR AGENTS SHALL HAVE ANY LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES SUFFERED BY CLIENT OR ANY OTHER PARTY AS A RESULT OF THE OPERATION OR MALFUNCTION OF THE SERVICE, REGARDLESS OF WHETHER OR NOT SUCH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CLIENT EXPRESSLY ACKNOWLEDGES THAT THE PROVISIONS OF THIS SECTION SHALL ALSO APPLY TO ALL CONTENT OR OTHER SERVICES AVAILABLE THROUGH THE SERVICE. CLIENT AGREES THAT CLIENT WILL NOT IN ANY WAY HOLD USDV RESPONSIBLE FOR ANY SELECTION OR RETENTION OF, OR THE ACTS OR OMISSIONS OF, THIRD PARTIES IN CONNECTION WITH THE SERVICE (INCLUDING THOSE WITH WHOM USDV MAY CONTRACT TO OPERATE VARIOUS AREAS ON THE SERVICE).

h.        Support Boundaries:

USDV provides eMail based 24 x 7 x 365 Client Support to all USDV Clients. USDV also provides eMail based 24 x 7 x 365 Technical Support AND 9AM to 5PM Monday through Friday LIVE TECH CHAT (http://www.usdatavault.com/support/), to all USDV Clients. We limit our technical support to our area of expertise.

The following are our guidelines when providing support:

USDV provides support related to your contracted service function ONLY. USDV does not offer tech support for application specific issues such as Data Base Management or setup, Network connectivity, CGI programming, HTML or any other such issue. If you can eMail, we encourage you to send mail to techsupport@usdatavault.com for assistance. If you are able to get online and have other questions, the answers may be on our HELP Web page at http://www.usdatavault.com/help - and we encourage you to check there first. Lastly, the Help files in our US DataVault Backup Professional software may also have the answer to your question so please do investigate these resources before calling tech support.

i.        SPAM and Unsolicited Commercial Email (UCE):

USDV takes a zero tolerance approach to the sending of Unsolicited Commercial Email (UCE) or SPAM over our network. Very simply this means that Clients of USDV may not use or permit others to use our network to transact in UCE. Clients of USDV may not host, or permit hosting of, sites or information that is advertised by UCE from other networks. Violations of this policy carry severe penalties, including termination of service.

Violation of USDV's SPAM policy will result in severe penalties. Upon notification of an alleged violation of our SPAM policy, USDV will initiate an immediate investigation (within 48 hours of notification). During the investigation, USDV may restrict Client access to the network to prevent further violations. If a Client is found to be in violation of our SPAM policy, USDV may, at its sole discretion, restrict, suspend or terminate Client's account. Further, USDV reserves the right to pursue civil remedies for any costs associated with the investigation of a substantiated policy violation. USDV will notify law enforcement officials if the violation is believed to be a criminal offense.

First violations of this policy will result in an "Administrative Fee" of $250 and your account will be reviewed for possible immediate termination. A second violation will result in an "Administrative Fee" of $500 and the immediate termination of your account. Users who violate this policy agree that in addition to these "Administrative" penalties, they will pay "Research Fees" not to exceed $175 per hour that USDV personnel must spend to investigate the matter. By acceptance of USDV services, you agree to allow USDV to charge your credit card account for any administrative and research fees required to deal with violations of the anti-SPAM policy. PLEASE, DO NOT SPAM over our network.

As our Clients are ultimately responsible for the actions of their clients over the H&S/USDV network, it is advisable that Clients develop similar, or stricter, AUP and TOS policies for their clients.

j.        Network:

IP Address Ownership:

If USDV assigns Client an Internet Protocol address for Client's use, the right to use that Internet Protocol address shall belong only to USDV, and Client shall have no right to use that Internet Protocol address except as permitted by USDV in its sole discretion in connection with the USDV provided Services, during the term of this Agreement. USDV shall maintain and control ownership of all Internet Protocol numbers and addresses that may be assigned to Client by USDV, and USDV reserves the right to change or remove any and all such Internet Protocol numbers and addresses, in its sole and absolute discretion. Bandwidth and Disk Usage:

USDV will monitor Client's bandwidth and disk usage. USDV shall have the right to take corrective action (additional billing for overage) if Client's bandwidth or disk usage exceeds the initial Agreed Usage, and/or if Client does not respond to notices of approaching requirements to increase allotments.

In certain circumstances, such corrective action could include any or all of the following: Assessment of additional charges, disconnection or discontinuance of any and all Services, or termination of this Agreement. Which actions may be taken is in USDV's sole and absolute discretion. If USDV takes ANY corrective action under this section, Client shall not be entitled to a refund of any fees paid in advance prior to such action.

System and Network Security:

Users are prohibited from violating or attempting to violate the security of the USDV Network. Violations of system or network security may result in civil or criminal liability. USDV will investigate occurrences, which may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting Users who are involved in such violations. These violations include, without limitation:

        a.     Accessing data not intended for such User or logging into a server or account,
                   which such User is not authorized to access.

        b.     Attempting to probe, scan or test the vulnerability of a system or network or to breach security
                   or authentication measures without proper authorization.

        c.     Attempting to interfere with service to any user, host or network, including, without limitation,
                   via means of overloading, "flooding", "mail bombing" or "crashing".

        d.     Forging any TCP/IP packet header or any part of the header information in any e-mail
                   or newsgroup posting.

        e.     Taking any action in order to obtain services to which such User is not entitled.

k.        Notification of Violation:

USDV is under no duty to look at each Client's or user's activities to determine if a violation of the AUP has occurred, nor do we assume any responsibility through our AUP to monitor or police Internet-related activities.

        First violation: Any User, which USDV determines to have violated any element of this Acceptable Use Policy, shall receive an eMail warning them of the violation. The service may be subject, at USDV's discretion, to a temporary suspension pending the Client's agreement in writing, to refrain from any further violations.

        Second Violation: Users that USDV determines to have committed a second violation of any element of this Acceptable Use Policy shall be subject to immediate suspension or termination of service without further notice.

        NOTE: We reserve the right to drop the section of IP space involved in Spam or Denial-of-Service complaints if it is clear that the offending activity is causing harm to parties on the Internet. In particular, appropriate action will be taken if open relays are on your network, or if denial of service attacks are originating from your network. In certain rare cases, we may have to do this before attempting to contact you. If we do this, we will contact you as soon as is feasible.

l.        Suspension of Service or Cancellation:

USDV reserves the right to suspend network access to any Client if in the judgment of the USDV network administrators the Client is the source or target of the violation of any of the terms of this AUP or for any other reason which USDV deems prudent for the protection of its network. If inappropriate activity is detected, all accounts of the Client in question will be deactivated until an investigation is complete. Prior notification to the Client is not assured. In extreme cases, law enforcement will be contacted regarding the activity. The Client will not be credited for the time the Client's accesses were suspended.

m.        Right to Amend:

USDV reserves the right to amend its policies and prices at any time, with or without advance notice. All Sub-Networks, resellers and managed server Clients of USDV must adhere to the above policies. Failure to follow any term or condition will be grounds for immediate Cancellation according to the stated actions as listed herein. You will be held responsible for the actions of your users in the matter described in these Terms and conditions. Therefore, it is in your best interest to implement similar or stricter Terms and Conditions, otherwise called your AUP.

n.        Indemnification:

USDV wishes to emphasize that by agreeing to the USDV Acceptable Use Policy (AUP) and Terms of Service (TOS), Client indemnifies USDV for any violation of the Acceptable Use Policy (AUP) and Terms of Service (TOS) that results in loss to USDV or the bringing of any claim against USDV by any third-party. This means that if USDV is sued because of a Client or Client's activity, the Client will pay any damages awarded against USDV, plus all costs and attorney's fees. USDV shall promptly inform the Client of any such action. Client shall have the right to join any action and defense its activities. If USDV is promptly notified in writing within seven (7) days of receipt of any action brought against Client based on a claim that the USDV Services unrelated to Client infringe a United States patent, copyright, trademark, or other intellectual property right of another party, USDV will defend that action at its expense and will pay any and all fees, costs or damages that may be finally awarded in that action and/or a settlement resulting from it (provided that Client shall permit USDV to control the defense of such action and shall not make any compromise, admission of liability or settlement or take any other action impairing the defense of such claim without USDV's prior written approval). If a final injunction is obtained against Client prohibiting usage of the Services by reason of Client's infringement of a United States patent, copyright, trademark, or other intellectual property right, USDV will, at its option, either:

                1.      At the Clients expense; procure the right for Client to continue using the Network or

                2.      Direct Client to cease using the Services.

In the latter event, the USDV provided Services shall terminate immediately. Client will indemnify and save harmless USDV from and against all loss, liability, damage, and expense, including but not limited to all reasonable counsel fees, due to claims for infringement of patents, copyright, trademark, or other intellectual property rights, or due to any other claims or causes of action by third parties of any nature whatsoever, arising from the use in connection with the Services of equipment, software or information not provided by USDV, or otherwise relating to or arising out of Client's use of the Services.

o.        Disclaimer of Liability:

USDV shall not be responsible for the use made of its Services by Client, their authorized users, or any other Client or third party. Without limiting the generality of the foregoing, USDV shall not be liable to Client or any of Client's users for any lost data or profits or other consequential damages, even if USDV has been advised of the possibility of such damages; any claim or other action against Client by any third party (except as set forth in the section below on infringement); any act or omission of any other entity furnishing products and services which are used by Client in connection with the Services or for failure of any products or services provided by Client; or any damages or losses caused by the fault or negligence of Client or Client's failure to perform Client's responsibilities.

p.        Termination and Default.

USDV may, at its sole discretion, terminate any Client Order and discontinue Client's access to and use of the Services, if:

        1. Client fails to pay any then due amount within 5 days after written notice that the same
                is delinquent; or

        2. Client breaches any of the terms, conditions, obligations, or representations contained herein; or

        3. Client becomes the subject of a voluntary or involuntary bankruptcy, insolvency, reorganization,
                or liquidation proceeding, makes an assignment for the benefit of creditors, or admits in writing
                its inability to pay debts when due, or

        4. Client's equipment or use of the Networks interferes with the Services of any other user.

In the event of a default by Client as specified in this section, USDV shall also be authorized to retain all payments made hereunder and to recover the full, unpaid balance of the charges applicable to the remainder of the then current minimum term of Client's Order for the Services. In addition, if USDV reasonably determines that the continuation of the Services has become impractical or unfeasible for any technical, legal, regulatory or other reason; USDV may terminate the Services at any time. USDV will, in such event, provide Client with at least thirty (30) days prior notice of such termination if reasonably practical. If termination is without any fault of Client, USDV shall refund any sums due and owing to Client.

If Client has elected a specific term for the Services and then cancels its Services or any portion thereof (or has its Services or any portion thereof terminated for default as provided above) prior to the expiration of such minimum term, Client shall be obligated to pay USDV a termination charge equal to the amount (if any) specified in the applicable Order; otherwise the termination charge shall be equal to 100% of the total monthly charges (other than variable usage charges) which would have become due for the remainder of the scheduled minimum term if such cancellation had not occurred. Client shall pay such termination charge to USDV within thirty (30) days after such cancellation.

q.        Account Cancellation:

All requests for canceling accounts must be made with at least 30 days notice by email to Customer Service at customerservice@usdatavault.com with "Cancel" in the subject line or in writing by mail with at least 30 days notice sent to USDV Attn: Cancellations, P.O. Box 33, Nashville, TN 37202 or you may call 615-596-4898. You must have all account information to cancel and have all accounts paid current.

r.        Miscellaneous Provisions:

You must provide us with, and keep current, good contact information for you. eMail, fax, mailing address and telephone contacts are used, in that order of preference.

A waiver by the Company of any breach of any provision of this Agreement by Client shall not operate as or be construed as a continuing or subsequent waiver thereof or as a waiver of any breach of any other provision thereof.

Client shall not transfer or assign this Agreement without the prior written consent of the Company. Company may assign Agreement at anytime without consent from or notice to Client.

USDV takes no responsibility for any material input by others and not posted to the USDV Network by USDV. USDV is not responsible for the content of any other service linked to the USDV Network; links are provided as Internet navigation tools only. USDV disclaims any responsibility for any such inappropriate use and any liability to any person or party for any other person or party's violation of this policy.

s.        Responsibility for Content:

USDV Clients are solely responsible for the legality of content you store or transmit on USDV network and servers.