This Hosting Services Terms and Conditions Agreement (“Agreement”) contains the complete and entire terms and conditions that apply to Customer’s use of Swiftwill’s Services (as defined below). Swiftwill may modify the terms of this Agreement, including the Fees (as discussed in Section XVII below) at its sole discretion upon thirty (30) days notice (which may be effected by posting such changes onto the Swiftwill home page). Customer’s continued use of the Services after the effective date of any such notice constitutes Customer’s acceptance of such changes.

I. THE PARTIES

In this Agreement, Swiftwill Solutions, Inc., d/b/a Swiftwill.com, will be referred to as the “Provider” or “Swiftwill” and the customer accepting this Agreement and purchasing the services will be referred to as the “Customer.”

II. GENERAL PROVISIONS

The Provider agrees to supply the Customer with Web Site Hosting Services (“Services”) as prescribed on Provider’s web site located at http://www.swiftwill.com (the “Site”) for a mutually agreed upon pricing structure and term, as detailed on the Site, which may change from time to time. The duration of the Agreement shall likewise be set forth on the Site, which may change from time to time.

The Customer agrees to all technical and billing requirements as set forth on said web site and to the Acceptable Use Policy and Terms of Service prescribed in this Agreement.

The Customer covenants and agrees to abide by the Agreement, as specified here, in addition to all future revisions that are publicly posted on the Provider’s web site. Due to the ever-changing nature of the Internet, the Customer fully understands and accepts the responsibility of keeping abreast of changes in the Agreement.

Customer is prohibited from furnishing any false or incorrect data on the signup form, contract, or online application, including but not limited to the fraudulent or unauthorized use of credit card numbers. Customer must not attempt to circumvent or alter the processes or procedures to measure time, bandwidth, utilization, or other methods to document “use” of the Provider’s products and services.

III. RESPONSIBILITY FOR CONTENT AND LICENSES

The Customer understands that Provider is not responsible for any conduct, content, goods and services that are or may be available through the Internet or the Provider’s services. Furthermore, the Customer understands that Provider is not responsible for the accuracy or quality of any information obtained through the Internet.

The Customer agrees to comply with all applicable laws, rules and regulations in connection with Customer’s use of the Service. The Customer agrees not to upload, transmit, or post copyrighted material, including trademarks or patent-protected material to the Internet without express authorization or purchased license of the owner(s) or person(s) owning the copyrighted material. Customer will indemnify Provider for any and all claims arising out of Customer’s violation of any intellectual property rights of any third party, arising out of Customer’s use of Provider’s services.

As between Customer and Swiftwill, Swiftwill acknowledges that it claims no proprietary rights in or to the content (including without limitation any literary works, sound recordings, audio visual works, motion pictures, photographs, animation, video and graphics, trademarks and service marks) supplied by Customer for use on Customer’s web site (“Customer Content”). Customer hereby grants to Swiftwill a non-exclusive, worldwide and royalty-free license to copy, make derivative works, display, perform, use, broadcast and transmit on and via the Internet Customer Content so that Swiftwill may perform its obligations hereunder by providing Customer with the Services.

Swiftwill may (but is not obligated to) provide Customer with certain materials, including, without limitation, computer software (in object code or source code form), data, documentation or information developed or provided by Swiftwill or its suppliers under this Agreement, domain names, electronic mail addresses and other network addresses assigned to Customer, and other know-how, methodologies, equipment, and processes used by Swiftwill to provide Customer with the Services (“Host Materials”). Subject to the terms and conditions of this Agreement, Swiftwill hereby grants Customer a limited, revocable, non-transferable, non-exclusive license to use the Host Materials solely in connection with Customer’s use of the Services. As between Customer and Swiftwill, Customer acknowledges and agrees that Swiftwill owns all right, title, and interest or otherwise has acquired all applicable licenses for the Host Materials, and all copyright, trade secret, patent, trademark and other intellectual property rights therein. Any other use of the Host Materials is not licensed and strictly prohibited. Customer agrees that Customer will not upload, transmit, reproduce, distribute or in any way exploit any Host Materials obtained through the Services without first obtaining the express prior written permission to do so from Swiftwill.

This Agreement does not constitute a license to use Swiftwill’s trade names, service marks or any other trade insignia. Any use of any of Swiftwill’s trade names, services marks or any other trade insignia shall be subject to Swiftwill’s prior written consent.

IV. DMCA POLICY – NOTICE AND TAKEDOWN PROCEDURE

Customer understands that the Provider is a “service provider” as defined in the Digital Millennium Copyright Act, and therefore has no responsibility for the content of Customer’s web sites. Provider implements the following “notice and takedown” procedure upon receipt of any notification of claimed infringement. Provider reserves the right at any time to disable access to, or remove any material or activity accessible on or from any Site or any Materials claimed to be infringing or based on facts or circumstances from which infringing activity is apparent. It is the firm policy of the Provider to terminate the account of repeat copyright infringers, when appropriate, and Provider will act expeditiously to remove access to all material that infringes on another’s copyright, according to the procedure set forth in 17 U.S.C. § 512 of the Digital Millennium Copyright Act (“DMCA”). Provider’s DMCA Notice Procedures are as follows: (1) The owner of a copyright must inform Provider’s Designated Agent in writing of the infringement, meeting the criteria listed in Paragraph XV and § 512 of the DMCA, which are: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest; (b) description of the copyrighted work or other intellectual property that Complainant claims has been infringed, or a representative list of infringing works if multiple works on a single site are on one notice; (c) a description of where the material that Complainant claims is infringing is located on a Site; (d) Complainant’s address, telephone number, and email address where Customer can be located; (e) a statement by Complainant that Complainant has a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (f) a statement by Complainant, made under penalty of perjury, that the above information in Complainant’s notice is accurate and that Complainant is the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf;

The Notice of Claimed Infringement must be sent to the following Designated Agent:

Lawrence G. Walters, Esquire

Weston, Garrou & DeWitt
781 Douglas Avenue,
Altamonte Springs, FL 32714
Phone: (407) 389-4529
Fax: (407) 774-6151
Larry@LawrenceWalters.com

Please do not send other inquires or information to our Designated Agent.

(2) If the notice does not comply with Paragraph XV and § 512 of the DMCA, but does comply with three requirements for identifying sites that are infringing according to § 512 of the DMCA, Provider’s Designated Agent shall attempt to contact or take other reasonable steps to contact the complaining party to help that party comply with the notice requirements; (3) When Provider’s Designated Agent receives the notice, it will expeditiously remove and/or disable access to the infringing material and shall notify the affected user; (4) Then, the affected user may submit a counter-notification to Provider’s Designated Agent containing a statement made under penalty of perjury that the user has a good faith belief that the material was removed because of misidentification of material; and (5) After Provider’s Designated Agent receives the counter-notification, Provider will replace the material at issue within 10-14 days after receipt of the counter-notification unless Provider’s Designated Agent receives notice that a court action has been filed by the complaining party seeking an injunction against the infringing activity. Provider reserves the right to modify, alter or add to this policy, and all users should regularly check back to these Terms and Conditions to stay current on any such changes.

V. OWNERSHIP DOCUMENTATION

At any time, the Provider may, at its sole discretion, require a copy of any and all legal documentation showing rightful ownership, or licensed distribution for any item displayed on the Customer’s web site so as to resolve any copyright or other legal claims that may arise. If Customer is unable to provide ownership or licensing information to the complaining party and/or Provider, then Customer must remove the objectionable material, or face having the applicable pages taken down by Provider.

VI. LEGAL SITES ONLY

The Customer agrees to keep its Site free of any illegal content, including but not limited to threats of physical harm to persons or property, programs containing viruses, pirated software, obscenity, password hacking, wire fraud, drug trafficking, child pornography and violations of international export control laws.

VII. INDEPENDENT CONTRACTOR

The relationship between Provider and Customer shall be that of independent contractors. Nothing in this Agreement shall create any joint venture, partnership, or agency relationship between Provider and Customer. The Customer shall be solely responsible for the development, operation and maintenance of its online businesses and/or sites and all contents and materials appearing online or related to Customer’s products and services, including without limitation (a) the accuracy and appropriateness of content and materials appearing on customer’s web pages, or within Customer’s business, and on Customer’s products; (b) ensuring that the content and materials appearing within the online business or related to the product or service do not infringe upon the rights of any third party; and (c) ensuring that the content and materials appearing within the website or related to Customer’s products and services are not libelous or otherwise illegal. Customer is solely responsible for the final calculation of and application of shipping, sales tax and any other taxes related to Customer’s business or website. Customer will also be solely responsible for accepting, processing, and filling customer orders, and for handling any customer inquiries or complaints arising therefrom. Customer shall also be solely responsible for the security of any of its customer information, including credit card numbers.

Customer shall also be responsible for any and all licenses for any software scripts or other electronic media installed on Customer’s server, and shall provide Provider with a copy of same upon demand.

VIII. FEDERAL TRADE COMMISSION COMPLIANCE

The Customer agrees to fully comply with the United States Federal Trade Commission (FTC) statutes and regulations (if Customer does business in the United States or with United States based customers), and any related rules, policies, and advisory opinions issued by the FTC. Customer’s failure to comply with the foregoing may result in immediate termination of this Agreement by Provider. The Customer understands that Provider is not giving legal advice and the Customer is advised to seek independent legal opinions about compliance with the FTC Act. The Customer is to avoid unfair or deceptive advertising. Pursuant to Section 5 of the FTC Act, a representation, omission, or practice is deceptive if it is likely to mislead consumers and improperly affect consumer’s behavior or decisions about the product or service. To be in compliance, Customer agrees that it will fully and fairly describe the products and services being sold as well as the costs thereof and the associated terms and conditions, procedures for making purchases, procedures for registering complaints or obtaining refunds and/or credits, the procedure for canceling service or returning products and any use which Customer may make of personal information gathered by Customer.

Disclosures must be clear and conspicuous and the FTC has identified the following characteristics to be utilized in evaluating the effectiveness in disclosures and Customer agrees to comply with these characteristics in all disclosures that it makes:

Unavoidable. Where a disclosure is made in respect of a particular representation, the disclosure will meet the "unavoidable" standard where it appears as close as possible to the triggering representation. The user should not be required to click on a hyperlink or scroll down a page to view the disclosure, but rather, should see the disclosure on the same screen as the representation. In situations where a disclosure is not in response to a particular representation, the disclosure should be as close as possible to relevant information.

Accessible. "Accessibility" can be achieved where a user is not prevented from returning to a page from which the customer has hyper-linked to another page and on which disclosures appear. These should be no more than three "mousetraps" or "exit consoles" on any page, and a direct method of exiting same.

Prominence. "Prominence" can be achieved where the disclosures are large in size and/or emphasized through a sharply contrasting color, and remain visible or audible for a sufficiently long duration, and lack "distracting" characteristics.

Repetition. “Repetition” of a disclosure in conjunction with a triggering claim increases the chances of consumers noticing and understanding them. This is particularly true on Web sites, which contain many and/or long Web pages.

Medium of Presentation. Disclosures should be made in the same medium (audio and /or visual) in which the claim was made (and in multimedia fashion, where the claim was made in more than one medium).

Customer agrees that any and all use of the word "free" must comply with the FTC rules and regulations, as embodied in the FTC GUIDE CONCERNING USE OF THE WORD "FREE" AND SIMILAR REPRESENTATIONS," a copy of which can be found at http://www.ftc.gov/bcp/guides/free.htm. It is Customer’s sole responsibility to comply with these regulations. To summarize some important rules from that Guide, "free" must mean truly free, so that, for example, the cost of the free item cannot be subsidized by a higher than normal price on another item. If the "free" offer is subject to certain terms and conditions, those terms must be disclosed in a clear and conspicuous manner, as described above. To be entitled to advertise an item as "free" it must normally be sold at some price, and if it is a new item, the Web site operator must intend, in good faith, to offer the item for sale in the future. According to FTC rules, a particular service should not be advertised as a "free" offer for more than 6 months in any 12-months period, and at least 30 days should elapse before another such offer is promoted. In any such period, the sales of the product sold with a "free" offer should not exceed 50 percent of the total volume of the merchant's sales of the product.

Regarding trial periods, the FTC believes that it is a deceptive trade practice for a Web site operator to fail to state in a clear and conspicuous manner the mechanism by which a subscriber may cancel either his trial period or regular membership. With respect to the trial period, the required disclosure must clearly state how long the trial lasts, the date by which the consumer must notify the webmaster to avoid the trial period becoming a regular membership, the consequences of failing to cancel by the designated termination date, and the price and terms of the regular membership.

Regarding cancellation of a recurring product or service, and consistent with FTC policy, the entry page of Customer’s web site shall have a clearly identified and easily accessible cancel link.

If Customer offers a trial period with a negative option (i.e., automatic conversion to a regular membership if the customer fails to cancel during the trial period), Customer must not state that Customer is taking credit card information from the subscriber solely to verify his age. While Customer may state that as one reason, if it is true, Customer must also state that Customer is taking the credit card to charge for the trial period and the regular membership after the trial period has expired.

It is Customer’s responsibility to comply with all laws, rules and regulations that apply to Customer’s Web site, not just the FTC rules we have discussed above. Customer is urged to review the FTC site, and to consult an attorney, with any questions Customer may have. CUSTOMER ACKNOWLEDGES THAT NOTHING CONTAINED IN THIS AGREEMENT SHALL CONSTITUTE LEGAL ADVICE, AND THAT CUSTOMER HAS BEEN TOLD TO SEEK ADVICE OF A COMPETENT ATTORNEY IF ANY INFORMATION CONTAINED HEREIN IMPACTS CUSTOMER.

IX. UNSOLICITED COMMERCIAL BULK EMAIL (SPAM)

The Customer agrees not to use the facilities and capabilities of the Provider to solicit the performance of any activity that is prohibited by any state or federal law or for the illegal distribution of Unsolicited Commercial Bulk Email (“UCBE”), commonly known as "spam," nor shall Customer forge or use without authorization, any mail header information.

This practice, commonly known as "spamming," is generally defined as the electronic transmission of unsolicited advertising materials to a party with whom the sender has no business or personal relationship, where the materials are not sent at the request of, or with the expressed consent of, the recipient. Failure to comply with the law and the following guidelines may result in immediate termination of Customer’s site.

For Customer’s information and to assist in understanding Customer’s obligations, but not for the purpose of providing legal information (Customer should seek its own legal counsel), Customer needs to be aware that several states (including California, Colorado, Washington, Virginia and Nevada, among others) have passed aggressive new laws to control UCBE. The federal government also has proposed legislation before it for examination and vote. Additional laws regulating or prohibiting UCBE may be passed without further update herein.

In an effort to help the Customer comply with this new and relatively uncharted area of the law, Provider is including some minimum guidelines. These guidelines are not intended to provide Customer with legal advice or replace Customer’s own analysis of Customer’s duties under the law(s) applicable to UCBE.

Pursuant to the UCBE Guidelines, Customer agrees not to:

A. Use a domain name which belongs to a third party, without that party's permission, or which is unregistered or fictitious, or
B. Take any other action which otherwise misrepresents or disguises the point of origin of the message or the path of the UCBE, or
C. Direct a UCBE to a subscriber of any Internet Service Provider ("ISP"), which prohibits such transmissions, or
D. Forge the mail header information, or
E. Use the Provider or Customer account to collect replies to messages sent from another provider, which violate these rules or those of that provider, or
F. Create or forward ‘chain letters’ or other ‘pyramid schemes’ of any type.

In addition, the subject line of the message must not contain false or misleading information. If Customer does business in California and the message is directed to a California resident and is sent through a California ISP, California law currently requires, inter alia, that the first four characters of the subject line must be "ADV." If the message relates to adult content, the first eight characters of the subject line must be "ADV: ADLT." Note that failure to comply with the foregoing law is a crime in California, and may result in significant fines and damages. As with any law, this regulation may be modified, repealed or enhanced at any time.

The text of the message shall contain the URL of the site, and a toll-free telephone number or valid email address, which the recipient may use to reach the Sender. The message must contain a statement informing the recipient that he or she may use the toll-free number or email address contained in the message to instruct the Sender to send no further messages to email addresses specified by the recipient. Customer shall notify the Provider of its receipt of such notice within 24 hours of its receipt, and thereafter, may not send messages to any of the designated email addresses. Any complaints regarding spam should be sent to support@Swiftwill.com.

X. USENET GROUPS

Provider reserves the right to reject postings from newsgroups where Provider has actual knowledge that the content of the newsgroup violates this Agreement. Customer also agrees to abide by established Usenet conventions (more commonly known as “netiquette”) and Customer is advised to check the rules and prohibitions for each Usenet site. Customer is prohibited from taking any of the following acts in relation to Usenet Groups:

ormation;
2) Posting chain letters of any type;
3) Posting inappropriate messages or posting encoded binary files to Usenet newsgroups not specifically named for that purpose;
4) Posting the same or similar message to large numbers of Usenet newsgroups;
5) Posting encoded binary files to newsgroups not specifically named for that purpose;
6) Canceling or superceding posts other than those Customer owns; or
7) Soliciting mail for any other email address other than that of the poster’s account or service, with the intent to harass or to collect replies.

XI. ADULT CONTENT

In the case of Adult Oriented Sites, the Customer agrees to present a disclaimer and a means of exit to visitors before granting access to any area deemed as adult in nature, sexually explicit or unsuitable materials for minors. Adult Oriented Sites must implement some form of age verification device to comply with the Child Online Protection Act (COPA). The Provider may, at any time, at its sole discretion, require the Customer to provide legal documentation fulfilling the requirements of 18 U.S.C. § 2257 for their review. Any Customer found to be in non-compliance with 18 U.S.C. § 2257 or any other applicable law may have their account suspended or revoked at the sole discretion of the Provider. Customer agrees to become informed and comply with all laws relating to obscene or harmful materials, at the state and federal levels.

Specifically, the following content may not be included in any Adult Oriented Site, or any other site, by the Customer:

1) Depictions of rape;
2) Menstruation;
3) Incest;
4) Defecation;
5) Genital mutilation;
6) Sexual violence;
7) Actual or “Virtual” Child Pornography;
8) Underage Modeling; or
9) Other content deemed illegal or obscene by any governmental authority.

XII. SECURITY

Any violation of system or network security is prohibited and may result in criminal and civil liability. Unauthorized Access of the servers is strictly prohibited. The Customer agrees not to engage in such activity or to attempt to breach the Servers for the purpose of altering or manipulating the hardware and software, compromising the Servers, or for any other unauthorized use commonly known as "hacking." In addition, Customer is prohibited from the following:

1) Any form of unauthorized access to or use of data, systems or networks;

2) Unauthorized monitoring of data or traffic on any network or system without express authorization of the owner of the system or network;
3) Unauthorized interference with service to any user, host or network;
4) Introducing a malicious program into the network or server (e.g. viruses and worms);
5) Circumventing user authentication or security of any host, network or account;
6) Using an account with another provider to promote Customer site with Provider in an abusive manner.
7) Utilizing Provider’s service for the purpose of compromising the security or tampering with system resources or accounts on computers at Provider or any other site.

Any customer granted Root access shall not:

A) Modify or distribute the system kernel in any way, shape or form;
B) Update/create/delete accounts created and maintained by the Company;
C) Alter or modify swiftwill accounts in any manner;
D) Change the partitioning or mount points of any drive;
E) Create/update/delete any system file without previous written permission
F) Create/update/delete any system file without previous written permission.
G) Create .rhosts or /etc/.host.eqiv files
H) Implement any procedure or process that would allow one login as root without using the root password.
I) Create suid scripts or programs without written permission.
J) Alter the system kernel.
K) Apply operating system and application patches to software not installed and solely maintained by the customer.
L) Change the root shell.
M) Alter /etc/fstab or /etc/vfstab.
N) Modify the decode or root alias in the /etc/aliases file.
O) Change the "identity" of the system.
P) Modify the system in any manner that restricts or alters access to the system by the Company's employees.
Q) Create/update/delete all aspects of Customer create user accounts. This may include modifying home directory permissions, user passwords, etc.
R) Modify, existing data in the following configuration files:
/etc/aliases, /etc/group, /etc/rc.local, etc/sendmail.cf file and root crontab.
S) Install software on the server provided the installation meets all of the criteria detailed above. Customer must also hold a license for the applicable software.

In the event Customer is involved in violations of system security, Provider reserves the right to release information about Customer to system administrators at other sites in order to assist in resolving security incidents and Provider shall cooperate with any law enforcement agency investigating a criminal violation of system or network security.

XIII. OTHER ACCEPTABLE USE RESTRICTIONS

In addition to the specific restrictions on use of Provider’s services detailed above, the following miscellaneous restrictions apply with equal force and effect:

Customer shall not:

1) Harvest or otherwise collect information about others, including but not limited to e-mail addresses, except as needed to operate Customer site and as permitted in Customer site’s privacy policy (if any);
2) Publish, post, upload, distribute or disseminate any topic, name, material or information that incites discrimination, hate or violence towards one person or a group because of their belonging to a race, a religion or a nation;
3) Download any file posted by another user of a Service that Customer knows, or reasonably should know, cannot be legally distributed in such manner;
4) Falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded;
5) Restrict or inhibit any other user from using and enjoying the Services;
6) Violate any code of conduct or other guidelines which may be applicable for any particular Service;
7) Create a false identity for the purpose of misleading others;
Use, download or otherwise copy, or provide (whether or not for a fee) to a person or entity any directory of users of the Services or other user or usage information or any portion thereof; or,
8) Violate the privacy or publicity rights of any individual.

XIV. WARRANTIES AND LIMITATIONS OF LIABILITY

NO WARRANTIES.

CUSTOMER EXPRESSLY AGREES THAT CUSTOMER’S USE OF THE SERVICES IS AT CUSTOMERS SOLE AND EXCLUSIVE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS, WITH ALL FAULTS” AND “AS AVAILABLE” BASIS. SWIFTWILL EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. SWIFTWILL MAKES NO WARRANTY THAT THE SERVICES WILL MEET CUSTOMER REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES SWIFTWILL MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES OR THAT DEFECTS IN ANY SOFTWARE, HARDWARE OR THE SERVICES WILL BE CORRECTED. CUSTOMER UNDERSTANDS AND AGREES THAT ANY USE CUSTOMER MAKES OF ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS AT CUSTOMER’S OWN DISCRETION AND RISK, AND THAT CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA.

SWIFTWILL MAY MAKE THIRD-PARTY GOODS, SERVICES AND/OR SOFTWARE AVAILABLE TO CUSTOMER THAT ARE NOT PART OF THE SERVICES (“THIRD-PARTY SERVICES”). SWIFTWILL HAS NO CONTROL OVER THE CONTENT OF THIRD-PARTY SERVICES. USE OF ANY THIRD-PARTY SERVICES WILL BE AT CUSTOMER’S OWN AND SOLE RISK AND SUBJECT TO THE TERMS AND CONDITIONS OF A SEPARATE AGREEMENT BETWEEN CUSTOMER AND THE THIRD-PARTY.

SWIFTWILL MAKES NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SERVICES OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICES.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM SWIFTWILL OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY, WHETHER BY IMPLICATION, ESTOPPEL OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY MARKETING OR PROMOTIONAL MATERIALS DESCRIBING THE SERVICES ON SWIFTWILL’S WEBSITE.

UNLESS OTHERWISE AGREED TO IN WRITING, SWIFTWILL DOES NOT MAKE A BACK-UP OF CUSTOMER SITE(S) AS PART OF THE SERVICES. ACCORDINGLY, WE ENCOURAGE CUSTOMER TO MAKE A BACK-UP OF CUSTOMER SITE(S) ON A REGULAR BASIS.

XV. LIMITATION ON LIABILITY

CUSTOMER IS SOLELY RESPONSIBLE FOR THE PROPER OPERATION OF CUSTOMER WEB SITE(S) AND/OR CONDUCT OF CUSTOMER’S BUSINESS(ES) AND ALL OTHER MATTERS UNDER CUSTOMER CONTROL. IN NO EVENT SHALL SWIFTWILL BE LIABLE TO CUSTOMER OR ANY OF CUSTOMER’S END-USERS FOR ANY DAMAGES ARISING FROM OR RELATED TO CUSTOMER’S OPERATION OF CUSTOMER’S WEB SITE(S) AND/OR BUSINESS(ES) OR FAILURE TO OPERATE CUSTOMER’S WEB SITE(S) AND/OR BUSINESS(ES).

THIS SECTION APPLIES TO ALL CLAIMS BY CUSTOMER OR CUSTOMER’S END USERS IRRESPECTIVE OF THE CAUSE OF ACTION UNDERLYING THE CLAIM, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT OR TORT, ACTIONS FOR NEGLIGENCE OR STRICT LIABILITY.

REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, CUSTOMER AGREES THAT IN NO EVENT WILL SWIFTWILL, OUR EMPLOYEES, INDEPENDENT CONTRACTORS, AGENTS, OR LICENSORS, OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE SERVICES, TECHNOLOGY, OR CONTENT AVAILABLE ON OR THROUGH THE SERVICES (“AFFILIATES”), BE LIABLE TO CUSTOMER IN ANY MANNER WHATSOEVER: (A) FOR ANY DECISION MADE OR ACTION OR NON-ACTION TAKEN BY CUSTOMER IN RELIANCE UPON THE INFORMATION PROVIDED THROUGH THE SERVICES; (B) FOR LOSS OR INACCURACY OF DATA OR, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; (C) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUES, LOSS OF PROFITS OR LOSS OF REPUTATION, FOR BUSINESS INTERRUPTION OR SIMILAR ACTION, EVEN IF SWIFTWILL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

THE TOTAL AGGREGATE AND MAXIMUM POTENTIAL LIABILITY OF SWIFTWILL AND ITS AFFILIATES, ARISING FROM OR OTHERWISE RELATING TO THIS AGREEMENT (REGARDLESS OF THE FORM OF ACTION OR CLAIM) AND CUSTOMER’S TOTAL AGGREGRATE AND MAXIMUM POTENTIAL DAMAGE AWARD AGREEMENT (REGARDLESS OF THE FORM OF ACTION OR CLAIM) IS LIMITED TO ANY AMOUNTS CUSTOMER HAS ACTUALLY PAID TO SWIFTWILL DURING THE SIX (6) MONTHS PRIOR TO THE ACCRUAL OF THE APPLICABLE CAUSE OR CAUSES OF ACTION.

XVI. INDEMNIFICATION

Customer agrees to defend, indemnify, and hold Provider and its affiliates, officers, directors, shareholders and attorneys, harmless from and against any and all claims and liabilities, including reasonable attorneys’ and experts’ fees, related to or arising from (a) any breach of Customer’s covenants under this Agreement; (b) Customer’s use (or misuse) of the Services; (c) all conduct and activities occurring under Customer’s user ID and password; (d) any item or service sold or advertised in connection with Customer Content or Customer’s information and data; (e) any defamatory, libelous or illegal material contained within Customer Content or Customer’s information and data; (f) any claim or contention that Customer Content or Customer’s information and data infringes any third party’s patent, copyright or other intellectual property rights or violates any third party’s rights of privacy or publicity; (g) third party access or use of Customer Content or Customer’s information and data; or (h) any violation of this Agreement. Swiftwill reserves the right, at its own expense, to participate in the defense of any matter otherwise subject to indemnification from Customer, but shall have no obligation to do so. Customer shall not settle any such claim or liability without the prior written consent of Swiftwill, which shall not be unreasonably withheld.

The Customer understands that the Provider will take drastic measures to protect itself from any legal or civil litigation including, but not limited to, removing a Customer’s web page(s) or site(s) from its servers for any reason deemed appropriate by the Provider. Customer also understands that Provider will charge, on an hourly basis, for any and all time spent responding to any third party complaints, disputes, copyright claims or actions involving Customer or Customer’s web sites.

XVII. FEES AND PAYMENT TERMS

The Provider reserves the right to change monthly fees, additional costs, billing methods, or any other area of Service it deems necessary at any time, for any reason. Provider may, at its sole discretion, terminate the Customer’s account at any time without refund for any remaining portion of the monthly fee. Said cancellation may be with or without cause and there shall not be any liability for lost profits or any other costs or expenses resulting from cancellation.

The Customer agrees to pay all charges incurred by the due date each month following execution of this Agreement, together with any additional charges, costs or assessments made by the Provider under the terms hereof. If payment of monthly fees is not posted to the Customer’s account within 5 days of the due date the Customer’s service is subject to suspension or termination without notice. Provider shall charge Customer a reconnection fee when Customer makes full payment to reinstate service. Moreover, the Customer understands that in the event, after termination of service, Customer still fails to pay all service fees, this Agreement grants to Provider a perpetual license to use all content and data in possession of Provider in any manner for any use at Provider’s discretion. In the event Customer has an unpaid balance due to Provider thirty (30) days after termination of Customer’s account, Provider shall have full right and authority to charge Customer’s balance to Customer’s credit card(s) on file with Provider. The Customer agrees that any unpaid balance due hereunder shall bear interest at the rate of 1½% per month (or the maximum legal rate, whichever is lower), and that costs of collection, including court costs and reasonable attorney’s fees shall be added as principal amounts to such balance. Customer understands that he/she is signing this Agreement both individually and as a representative of a corporation (if applicable) and that the individual who signs this Agreement personally guarantees the payment of all fees referenced above, even if this Agreement is made on behalf of a corporation in which case both the corporation and the individual are liable.

XVIII. TERM AND TERMINATION

This Agreement shall be effective for as long as Customer uses, or is obligated to use the Services. Either Customer or Swiftwill may terminate this Agreement, with or without cause, upon thirty (30) days notice to the other party.

In addition to Swiftwill’s right to terminate this Agreement provided elsewhere in this Agreement, Swiftwill may terminate this Agreement effective immediately if, based on Swiftwill’s sole judgment, it determines that: (a) Customer or any of Customer’s end-users have breached this Agreement, (b) Customer infringed or violated any intellectual property right or privacy or publicity right of a third party, (c) Customer has not complied with Title 18, U.S.C. s. 2257, or (d) any of Customer’s Content contains images prohibited under this Agreement.

The termination of this Agreement will terminate Customer’s access to the Services and Customer’s license to the Host Materials. Swiftwill shall not be liable to Customer or to any third party for termination of the Services for any reason (if, at the time of termination, Swiftwill reasonably believed that either Customer or any of Customer’s end users were in violation of the AUP). The termination of this Agreement does not relieve Customer of Customer’s obligation to pay any Fees accrued or payable to Swiftwill prior to the effective date of termination of this Agreement.

Upon termination of this Agreement, Swiftwill reserves the right to maintain copies of Customer’s data files and records for archival purposes, but has no obligation to do so. Swiftwill reserves the right to impose an early termination charge for all Services terminated prior to the last day of the billing cycle.

If either party cancels or terminates this Agreement for any reason, Customer shall be solely responsible for making all necessary arrangements for a replacement host.

Upon termination of this Agreement, provisions that by their nature would be expected to survive termination shall survive and remain in full force and effect in accordance with their terms.

XIX. IP ADDRESSES AND PRIVACY ISSUES

The Customer agrees and understands that any network address assignments (“IP addresses”) issued by Provider to Customer shall remain the property of Provider, and are considered to be loaned to the Customer. The Customer also understands that Provider is not a secure communications medium for the purposes of the Electronic Communications Privacy Act, and that it may be necessary for Provider to examine systems accounting logs and other records to determine if privacy violations or other network activities have occurred.

XX. GENERAL PROVISIONS

A. Governing Law. This Agreement and all matters arising out of or otherwise relating to this Agreement shall be governed by the laws of the State of Florida, excluding its conflict of law provisions. The parties hereby submit to the personal jurisdiction of the state and federal courts of the State of Florida. Exclusive venue for any litigation permitted under this Agreement shall be with the state and federal courts located in Seminole County, Florida.

B. Arbitration. If there is a dispute between the parties arising out of or otherwise relating to this Agreement, the parties shall meet and negotiate in good faith to attempt to resolve the dispute. If the parties are unable to resolve the dispute through direct negotiations, then, except as otherwise provided herein, either party may submit the issue to binding arbitration in accordance with the then-existing Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be conducted in Seminole County, Florida and conducted by a single arbitrator, knowledgeable in Internet and e-Commerce. Except as provided below, the party bringing the action shall be responsible for paying all costs for arbitration, including the arbitrator’s fees. Each party shall bear its own attorneys’ fees (except if the matter is for the collection of a debt owed in which case the prevailing party shall be awarded its attorneys fees, all arbitration costs and arbitrator fees, in addition to all other applicable remedies). The arbitrator shall have no authority to award any punitive or exemplary damages; certify a class action; add any parties; vary or ignore the provisions of this Agreement, and shall be bound by governing and applicable law. The arbitrator shall render a written opinion setting forth all material facts and the basis of his or her decision within thirty (30) days of the conclusion of the arbitration proceeding. This provision mandating arbitration for the resolution of disputes does not apply to any dispute involving intellectual property.

C. Assignment. The rights and liabilities of the parties hereto will bind and inure to the benefit of their respective assignees, successors, executors, and administrators, as the case may be. Neither this Agreement nor any rights granted hereunder may be sold, leased, assigned or otherwise transferred, in whole or in part by Customer.

D. Severability. If for any reason a court of competent jurisdiction or arbitrator finds any provision of this Agreement, or any portion thereof, to be unenforceable, that provision will be enforced to the maximum extent permissible and the remainder of this Agreement will continue in full force and effect.

E. No Waiver. Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision, and no waiver of one breach will constitute a waiver of subsequent breaches of the same or of a different nature.

F. Complete Agreement. This Agreement constitutes the entire agreement between the parties with respect to the Services, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, including without limitation any marketing or promotional materials located on the Swiftwill website, or any oral promises made by any sales representatives for Swiftwill. No amendment to or modification of this Agreement will be binding unless in writing and signed by a duly authorized representative of both parties, except as otherwise provided in this Agreement.

G. Relationship Between the Parties. Swiftwill is an independent contractor; nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties.

H. Headings. Section and subsection headings of this Agreement are inserted for convenience only and shall not be deemed to constitute a part hereof nor to affect the meaning thereof.

I. Force Majeure. Swiftwill shall not be responsible for any failure to perform due to unforeseen circumstances or to causes beyond its reasonable control, including but not limited to: acts of God, such as fire, flood, earthquakes, hurricanes, tropical storms or other natural disasters; war, riot, arson, embargoes, acts of civil or military authority, or terrorism; fiber cuts; strikes, or shortages in transportation, facilities, fuel, energy, labor or materials; failure of the telecommunications or information services infrastructure; hacking, SPAM, or any failure of a computer, server, network or software, including Y2K errors or omissions, for so long as such event continues to delay Swiftwill’s performance.

J. Export. Customer understands and acknowledges that the software elements of the Host Materials may be subject to regulation by agencies of the United States Government, including the United States Department of Commerce, which prohibits export or diversion of software to certain countries and third parties. Customer will not assist or participate in any such diversion or other violation of applicable United States laws and regulations. Customer warrants that Customer will not license or otherwise permit anyone not approved to receive controlled commodities under
applicable United States laws and regulations and that Customer will abide by such laws and regulations.

K. Government Rights. Provider’s software elements have been developed at private expense and are “commercial computer software” or “restricted computer software” within the meaning of the FARs, the DFARs, and any other similar regulations relating to government acquisition of computer software. Nothing contained herein will be deemed to: (i) grant any government agency any license or other rights greater than are mandated by statute or regulation for commercial computer software developed entirely at private expense, or (ii) restrict any government rights in any extensions or custom solutions provided hereunder and developed at government expense.

L. Notices Electronic Communications. All notices permitted or required under this Agreement may be sent by e-mail, fax, express mail, mail, or registered mail to the e-mail address, fax number, or physical address most recently provided and will be effective upon transmission. Evidence of successful transmission shall be retained. Each Party may communicate with the other by electronic means as described in this Agreement.