Terms of Service

The following terms of service (these “Terms of Service” or this “Agreement”) govern the provision by Azuki LLC (AzukiNet,Azuki)to the customer executing this online transaction (“Customer”), of all the products and services from AzukiNEt. These Terms of Service shall be effective as of the date that Customer executes its online transaction and thereby accepts these Terms of Services (the "Effective Date"). These Terms of Service hereby incorporate by reference the SLA, AzukiNet's Acceptable Use Policy (as in effect from time to time as set forth on AzukiNet's website, the "AUP") and the Order Form each of which is made a part of these Terms of Service and collectively referred to herein as the Agreement. Customer's use of AzukiNet's website, AzukiNet Network, and the Products and Services is also subject to Customer's acceptance and compliance with these Terms of Service, the AUP, the SLA and the Order Form. Capitalized terms used herein without being defined herein shall have the meaning ascribed to such capitalized term in the SLA or AUP, as applicable.

AZUKINET HEREBY RESERVES THE RIGHT TO AMEND, ALTER, MODIFY, REPLACE OR SUSPEND, FROM TIME TO TIME IN ITS SOLE DISCRETION, ALL OR ANY PORTION OF THE SLA, THE AUP AND ITS PRIVACY POLICY (AS IN EFFECT FROM TIME TO TIME AS SET FORTH ON AZUKINET'S WEBSITE, THE "USE POLICY"). CURRENT COPIES OF AZUKINET'S SLA, AUP AND PRIVACY POLICY MAY BE REVIEWED OR PRINTED BY CUSTOMER AT THE INFRASTRUCTURE SECTION OF AZUKINET'S WEBSITE. CUSTOMER HEREBY REPRESENTS AND WARRANTS THAT IT HAS READ, UNDERSTOOD AND ACCEPTED THE TERMS OF THE SLA, AUP AND PRIVACY POLICY.

By submitting an Order Form online or by using AzukiNet's website, Azuki LLC (as defined in the SLA), products or services, Customer hereby agrees to the terms and conditions of the Agreement.

Term and Renewal

Unless Customer agrees to a one-year, semi-annual or quarterly term or unless otherwise stated in an Order Form or any service description, the initial term ("Initial Term") of this Agreement shall be month-to-month, (A) commencing on the Effective Date and shall automatically renew on the monthly anniversary date (date of initial signup), for successive one-month periods unless cancelled or terminated earlier pursuant to the express terms of this Agreement or (B) in the case of a one-year term, each yearly anniversary of the Effective Date for successive one-year periods unless cancelled or terminated earlier pursuant to the express terms of this Agreement (in each case, a "Renewal Period"). Customer agrees to be bound by the service term selected on the Order Form or via applicable promotional codes. AzukiNet may cancel or elect not to renew the Products and Services for any reason or no reason at all by delivering to Customer a written notice of non-renewal at least five (5) days prior to the expiration of the Initial Term or the then-current Renewal Period, as applicable.

Customer Cancellation or Non-Renewal

In order to cancel or elect not to renew any Product or Service, Customer must submit e-mail the cancellation request (a "Cancellation Notice") at least fifteen (15) days prior to expiration of the initial term or renewal date.

CUSTOMER AKNOWLEDGES AND AGREES THAT NO PRODUCT OR SERVICE WILL BE CANCELLED, ALL PRODUCTS AND SERVICES SHALL CONTINUE TO RENEW AND CUSTOMER WILL CONTINUE TO BE BILLED FOR ALL PRODUCTS AND SERVICES UNLESS CUSTOMER CANCELLS THE PRODUCTS AND SERVICES AS PROVIDED.

Termination

AzukiNet may immediately terminate this Agreement at any time, and without liability, upon the occurrence of any of the following events ("AzukiNet Termination"): (i) Customer's failure to pay any overdue amount within 24 hours after written notice by AzukiNet is given to Customer or (ii) Customer's material breach or violation of any provision of this Agreement (other than such violations set forth in clauses (iii), (iv) and (v) below) that is not cured within twenty-four (24) hours of Customer's receipt of written notice from AzukiNet referencing such breach or violation; (iii) Customer ceasing to do business in the normal course, becoming or being declared insolvent or bankrupt, being the subject of any proceeding relating to liquidation or insolvency which is not dismissed within ninety (90) calendar days, or making an assignment for the benefit of its creditors; (iv) Customer's violation of the AUP or the Privacy Policy; or (v) AzukiNet determines in its sole discretion that Customer continues to host content that may subject AzukiNet to legal liability (in which case, AzukiNet may terminate or modify the Products and Services to avoid such liability) (vi) Customer exhibits abusive behavior towards AzukiNet representatives via phone or online communication. AzukiNet determines in its sole discretion what behavior is considered abusive and subject to immediate termination. In such events listed above AzukiNet shall have no obligation to refund any funds paid in advance by customer.

Customer may terminate this Agreement with respect to all, and not less than all, of the Products and Services without liability (except for Charges due through the effective date of such termination) upon the occurrence of a material breach by AzukiNet of its obligations to provide the Products and Services according to the terms of this Agreement that is not cured within fifteen (15) business days after written notice from Customer describing such breach in detail is received by AzukiNet ("Customer Termination"). In the event of a Customer Termination, Customer shall pay (1) all outstanding amounts payable through the effective date of such termination and (2) if the Products and Services include software for which AzukiNet does not then provide general customer support, Customer shall pay to AzukiNet an amount equal to AzukiNet's cost of such software for the entire Initial Term and any applicable Renewal Periods. If Customer terminates this Agreement for any reason other than a Customer Termination, Customer shall pay to AzukiNet an amount equal to all unpaid Charges through the effective date of such termination and (A) in the case of any Product and Service subscribed for on a month-to-month basis, all Charges for the Products and Services through the remainder of the Initial Term or the then-current Renewal Term, as applicable and (B) in the case of any Product and Service subscribed for other than on a month-to-month basis, all Charges for the Products and Services through the remainder of the Initial Term or the then-current Renewal Term, as applicable, calculated based upon the then-current Minimum Monthly Commitment payable by Customer upon the date of termination. CUSTOMER ACKNOWLEDGES THAT CUSTOMER WILL NOT BE ENTITLED TO ANY REFUND OR CREDIT IN THE EVENT THAT ANY PRODUCT OR SERVICE THAT IS PROVIDED ON THE BASIS OF A ONE-YEAR TERM IS TERMINATED, WITH OR WITHOUT CAUSE, PRIOR TO THE EXPIRATION OF THE ONE-YEAR TERM. CUSTOMER HEREBY WAIVES ALL RIGHTS TO ANY SUCH REFUND OR CREDIT.

Upon termination of this Agreement, AzukiNet and Customer shall have no obligations to each other, except as provided for in this Agreement. Upon termination of this Agreement, Customer shall (i) pay all Charges and other amounts due and owing to AzukiNet under these Terms of Service, (ii) immediately remove from AzukiNet's premises all property owned by Customer, including, but not limited to, immediately removing all of Customer's data from AzukiNet Network (including all servers owned or operated by AzukiNet), and (iii) return to AzukiNet all software, access keys, and any other property provided to Customer by AzukiNet under this Agreement. Any physical property of Customer not removed from AzukiNet's premises within forty- five (45) days after such termination shall become the property of AzukiNet, which may, among other things, dispose of such property without the payment of any compensation to Customer. Sections 4, 5, 6, 7 and 8 shall survive the expiration, cancellation and termination of this Agreement for any reason.

Payment

Customer agrees to pay all charges, fees, penalties, early cancellation charges, reconnection fees, service interruption fees, installation fees and other amounts due under this Agreement (collectively "Charges") in US dollars. All Charges for the Products and Services, and for any additional services described herein, shall be invoiced to the Customer and paid in advance of the Initial Term and each Renewal Term (but may include any applicable pro-rated amounts for partial months of for Products and Services provided on a month-to-month basis) and shall be due and payable upon receipt. Any additional one-time charges, including early cancellation charges, accrued interest, late fees, service reinstatement fees, and any usage-based charges (installation or set-up fees) shall be invoiced in arrears and appear on either regular monthly invoices or separate invoices. Server rental charges are incurred immediately at signup and are prorated by 3 days to allow for server provisioning and delivery. Customer also shall pay to AzukiNet all expenses incurred by AzukiNet in exercising any of its rights under this Agreement or applicable law with respect to the collection of a payment default, including attorneys' fees, court costs, and collection agency fees. If Customer fails to pay any past due amount within five (5) days after written notice by AzukiNet's given to Customer, AzukiNet may suspend performance under this Agreement and if such past due amounts remain unpaid for an additional five (5) days thereafter, AzukiNet may terminate this Agreement. AzukiNet may charge interest on any invoice amounts that are overdue by more than ten (10) days at the lesser of (a) 1.5% per month or (b) the maximum non-usurious rate under applicable law. Customer shall be deemed to have accepted as conclusively accurate any invoice that it has not disputed in a writing delivered to AzukiNet within sixty (60) days of the invoice date. Customer may withhold the disputed portions of payments that are properly and timely disputed hereunder as long as it timely pays all undisputed charges that are outstanding. The parties shall work together in good faith to resolve any such disputed charge. In the event that this Agreement is terminated by AzukiNet for any reason constituting "AzukiNet Termination" (as defined above) or by Customer for any reason other than "Customer Termination" (as defined above), all Charges under the Agreement, including all remaining monthly or yearly fees due for the remaining portion of the Initial Term and each applicable Renewal Period, shall accelerate and are immediately due and payable. All set-up fees, monthly service fees and usage fees are non-refundable. Customer shall not be entitled to any refunds or credits, pro-rated or otherwise, in the event of early termination of this Agreement by AzukiNet according to the terms herein.

Indemnification

Customer agrees to indemnify and hold harmless AzukiNet, its subsidiaries, their affiliates and each of their respective directors, officers, employees, shareholders and agents (each an "Indemnified Party") against any losses, claims, damages, liabilities, penalties, actions, proceedings, judgments, or any and all costs thereof (collectively, "Losses") to which an Indemnified Party may become subject and which Losses arise out of, or relate to the Agreement, Customer's use of the Products and Services, breach of any confidentiality obligation or any alleged infringement of any trademark, copyright, patent or other intellectual property right and will reimburse an Indemnified Party for all legal and other expenses, including reasonable attorneys' fees incurred by such Indemnified Party, in connection with investigating, defending, or settling any Loss, whether or not in connection with pending or threatened litigation in which such Indemnified Party is a party.

Disclaimers, Limitation on Company Liability.

AZUKINET SHALL NOT BE LIABLE FOR (i) ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF PROFITS OR LOSS OF REVENUE RESULTING FROM THE USE OF THE PRODUCTS AND SERVICES BY THE CUSTOMER OR ANY THIRD PARTIES OR ANY FAILURE OF THE PRODUCTS AND SERVICES OR (ii) ANY LOSS OF DATA OR CORRUPTION OF DATA, INCLUDING LOSS OF DATA RESULTING FROM DELAYS, NONDELIVERIES, MISDELIVERIES, SERVICE INTERRUPTIONS, FAILURE OF AZUKINET NETWORK, RECLAIMATION OF SERVERS BY AZUKINET, FAILURE OF SERVERS, THE RELOADING OF AN OPERATING SYSTEM OR OTHER SOFTWARE ON A SERVER OR THE NEGLIGENCE OF AZUKINET. CUSTOMER IS SOLELY RESPONSIBLE FOR SAFEGUARDING, BACKING UP AND ARCHIVING ALL DATA OWNED, CONTROLLED OR TRANSMITTED BY CUSTOMER THAT RESIDES ON AZUKINET NETWORK OR ANY SERVER OWNED OR OPERATED BY AZUKINET. IN NO EVENT SHALL AZUKINET'S AGGREGATE LIABILITY FOR ANY CLAIM UNDER THIS AGREEMENT EXCEED THE AGGREGATE AMOUNT PAID BY CUSTOMER TO AZUKINET IN THE BILLING CYCLE IMMEDIATELY PRECEEDING SUCH CLAIM. AZUKINET PROVIDES ALL PRODUCTS AND SERVICES "AS IS," WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR THE SELECTION, USE AND SUITABILITY OF THE PRODUCTS AND SERVICES AND AZUKINET SHALL HAVE NO LIABILITY THEREFORE. NO CLAIM MAY BE ASSERTED BY CUSTOMER AGAINST AZUKINET MORE THAN TWO (2) YEARS FOLLOWING THE DATE OF THE EVENT THAT UNDERLIES ANY SUCH CLAIM. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE RECEIPT OF A SERVICE CREDIT AS PROVIDED FOR IN THE SLA CONSTITUTES CUSTOMER'S SOLE AND EXCLUSIVE REMEDY, AND AZUKINET'S SOLE AND EXCLUSIVE LIABILITY, FOR ANY FAILURE OF AZUKINET NETWORK, AZUKINET HARDWARE OR AZUKINET INFRASTRUCTURE OR THE FAILURE BY AZUKINET TO PROVIDE CUSTOMER WITH THE PRODUCTS AND SERVICES OR MANAGED HOSTING SERVICES PURCHASED BY CUSTOMER IN ACCORDANCE WITH THIS AGREEMENT WHICH RESULTS FROM A QUALIFIED NETWORK DOWNTIME EVENT OR ANY OTHER QUALIFIED DOWNTIME EVENT.