Terms & Conditions

General Terms and Conditions (version 2.4)

Pro4ia, Inc. Agreement: This version of the Pro4ia, Inc. Agreement (this “Agreement”) is made and entered into by and between Pro4ia, Inc. or one of its subsidiaries as designated in the Sales Order (“Pro4ia”) and the customer (“Customer” or “Client”) identified in the Sales Order (“Sales Order", “Scope of Work”, “Proposal”, “Work Order”, “Change Order” or “RFP Response”), that specifically references this Agreement. Certain capitalized items are defined at conclusion of this agreement. This Agreement sets forth the terms and conditions under which Pro4ia shall provide the Products and/or Services described in the Sales Order. The Sales Order shall reference and be governed by this Agreement. THE PERSON WHO ACCEPTS THIS AGREEMENT AND THE SALES ORDER REPRESENTS AND WARRANTS THAT HE OR SHE HAS THE POWER AND AUTHORITY TO BIND CUSTOMER AND, ACKNOWLEDGES ON BEHALF OF CUSTOMER THAT HE OR SHE HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.

This Agreement and the Sales Order constitute the complete and exclusive agreement between the parties concerning the subject matter of this Agreement and supersedes all oral or written proposals, negotiations, conversations and other communications between the parties relating to the subject matter of this Agreement.

Term and Termination: This Agreement shall remain in effect until terminated as provided herein and any Sales Order shall remain in effect for the term specified in such Sales Order unless terminated earlier as provided in this Agreement. Either party may terminate this Agreement or a Sales Order if the other party materially breaches this Agreement or such Sales Order, as the case may be, and does not cure such breach within thirty (30) days after the non-breaching party gives written notice of such breach describing in detail the specific nature and dates of the material breach. Either party may terminate this Agreement without cause when there are no outstanding Sales Orders. Termination of this Agreement in accordance with this Section will also result in the termination of all outstanding Sales Orders. Any terms of this Agreement that by their nature extend beyond the expiration or termination of this Agreement, including the terms of the sections entitled Charges and Payment, Intellectual Property Rights and Limitation of Liability, shall remain in effect until fulfilled.

SALES ORDERS: If there is a conflict between the terms and conditions of this Agreement and the terms and conditions of a Sales Order (or any other document that the parties may execute), the terms and conditions of this Agreement prevail unless the conflicting term in the Sales Order expressly states that it is modifying the terms and conditions of this Agreement for that particular Sales Order. If not otherwise subject to a signed Sales Order, a Product or Service becomes subject to this Agreement when Pro4ia accepts Customer’s order by: (a) providing Customer a Sales Order; (b) shipping the Product or (c) providing the Service. Customer accepts the additional terms in a Sales Order by doing any of the following: (a) signing the Sales Order or issuing a purchase order or similar document referencing the Sales Order; (b) using the relevant Product or Service, or allowing others to do so or (c) making any payment for the relevant Product or Service. The use of pre-printed forms, including but not limited to purchase orders, e-mail or acknowledgements, shall be for convenience only and all pre-printed terms and conditions stated on such forms are void and of no effect. All orders for Products or Services are subject to approval by Pro4ia at its corporate headquarters in New York, NY.

Charges and Payment: Customer shall pay Pro4ia for Products and/or Services in accordance with the amounts set forth in the Sales Order, or if not so specified, then within ten (10) days of the date of invoice, and all payments shall be made in U.S. Dollars without reduction. If any authority imposes a tax, duty, levy or fee, excluding those based on Pro4ia’s net income, upon any Products or Services supplied by Pro4ia under this Agreement, Customer agrees to pay that amount as specified in the invoice or supply Pro4ia with exemption documentation (taxes, shipping and/or other expense items may or may not be included in any of the listed charges, fees or compensation described in the Sales Order). Customer’s failure to pay according to the terms of this Agreement shall entitle Pro4ia, without prejudice to its other rights and remedies under this Agreement, to charge interest on a daily basis after 45 days from the original invoice date at the rate of the lesser of 2.0% per month or the maximum amount permissible by law. Payment received when there are more than one past due invoices shall be applied at Pro4ia’s discretion. Customer shall reimburse Pro4ia for all reasonable costs incurred by Pro4ia in collecting past due amounts, including collection agency fees, reasonable attorney’s fees and court costs. Unless otherwise specified in the relevant Sales Order, Pro4ia may increase recurring charges for Products and Services (including hourly rates) by giving Customer thirty (30) days prior written notice. Disputes and questions regarding an invoice shall be brought to Pro4ia's attention by Customer within ten (10) days following receipt of the invoice, and the existence of a disputed item on an invoice shall not be cause for withholding payment for the undisputed portion of the invoice, or for any other invoice.

Assignment: This Agreement may not be assigned, sublicensed or otherwise transferred, in whole or in part, by Customer, whether by operation of law or otherwise, without Pro4ia’s prior written consent. Any attempted assignment in violation of this Section will be void. Customer agrees that all Products, Services and WORK PRODUCT shall be used solely within Customer’s business enterprise, and shall not be remarketed or leased to third parties.

Governing Law; Actions: All rights, duties and obligations arising from or relating in any manner to the subject matter of this Agreement shall be governed by and construed under the laws of the State of New York applicable to agreements made and fully performed therein, without regard to its conflict of laws provisions. The state courts of the State of New York or the Federal District Court for the Southern District of New York shall have sole and exclusive jurisdiction to hear and determine any dispute or controversy arising under or concerning this Agreement. Neither party shall bring a legal action against the other relating to the subject matter of this Agreement more than two (2) years after the cause of action arose. Nothing in this Agreement affects any statutory rights that cannot be waived or limited by contract under applicable law.

Limitation of Liability: Regardless of the basis on which Customer is entitled to claim damages from Pro4ia, to the fullest extent permitted by law, Customer hereby agrees that Pro4ia’s total liability to the Customer (for any and all injuries, claims, losses, expenses or damages howsoever arising from or in any way relating to the Project, Proposal or Sales Order from any cause or causes including, but not limited to, the negligence, errors, omissions, misrepresentation, breach of contract or breach of warranty, or other contract or tort claim by any Pro4ia employee or agent) shall be limited and shall not exceed the total compensation received by Pro4ia under the Proposal. Pro4ia is liable only for the amount of any actual direct damages up to a maximum actually paid by Customer for the Product, Work Product or Service that is the subject of the claim. This limit also applies to any of Pro4ia's affiliates, subsidiaries, suppliers and subcontractors, and is the maximum for which this group shall be collectively responsible. This limit does not apply to any damages for bodily injury (including death) and damage to real property and tangible personal property. In no event shall Pro4ia, its subsidiaries, affiliates, suppliers or subcontractors be liable for (i) any third-party claims against Customer for losses or damages (other than those under the immediately preceding sentence), (ii) loss of or damage to Customer’s records or data or (iii) special, incidental or consequential damages (including lost profits or savings), even if they are informed of their possibility. These limitations shall apply despite the failure of the essential purpose of any limited remedy.

Force Majeure: No delay or default in performance of any obligation by either party, excepting all obligations to make payments hereunder, shall constitute a breach of this Agreement to the extent such default or delay is caused, directly or indirectly, by an event beyond the reasonable control of the party unable to perform, including fire, flood, earthquake, elements of nature, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, failure of the Internet or strikes, lockouts or labor difficulties.

Severability - Entire Agreement: If any particular provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect. This Agreement, including all applicable Sales Orders, constitute the complete and exclusive agreement between the parties concerning the subject matter of this Agreement and supersede all oral or written proposals, negotiations, conversations and other communications between the parties relating to the subject matter of this Agreement. All applicable Sales Orders are hereby incorporated by reference and made a part of this Agreement.

Counterparts; Reproduction; & No Third Party Beneficiaries: This Agreement may be signed in one or more counterparts, each of which shall be considered an original, but all of which together form one and the same instrument. Once any required signatures are obtained, any reproduction of this Agreement or any Sales Order made by reliable means (for example, photocopy or facsimile) is considered an original, unless prohibited by local law; provided, however, that this shall not preclude either party from requiring the exchange of original signatures. This Agreement does not create any benefits, rights, claims, obligations, or causes of action in, to, or on behalf of, any person or entity other than to Pro4ia and Customer under this Agreement, except as set forth in the Limitation of Liability section.

Notices & Changes: Except as otherwise specified in this Agreement, all notices, required or permitted under this Agreement must be given in writing to the addresses set forth above by reputable overnight courier, registered or certified first class mail, return receipt requested. Changes or waivers to this Agreement may be made only in wiring signed by both parties. Changes in any other form, including additional or different terms in any purchase order or other written communication from Customer, are void.

Representations: Pro4ia and Customer each represent and warrant to the other that: (i) it has all requisite power and authority to execute, deliver and perform its obligations under this Agreement; (ii) its signing of and agreement to this Agreement has been duly authorized by all requisite corporate actions and (iii) this Agreement is a valid and binding obligation, enforceable against it in accordance with its terms (assuming the due authorization, execution, and delivery by the other).

PRODUCTS: Sections 1 thru 7 shall apply to any Sales Order in which Customer has agreed to acquire Product(s) from Pro4ia. In the event Customer only acquires Service(s) these terms shall not apply:
1. HARDWARE, SOFTWARE & THIRD-PARTY SERVICES: Subject to the terms herein, Customer agrees to purchase and Pro4ia agrees to sell, license and/or transfer, the Products set forth in a Sales Order. Hardware is sold to Customer subject to any additional terms and conditions (including manufacturer warranty provisions) provided with such Hardware by Pro4ia or Pro4ia’s supplier. This Agreement does not transfer title to Software. Customer shall receive only the rights set forth in a license agreement for the Software to be provided by Pro4ia or Pro4ia’s supplier. Third-Party Services are sold by Pro4ia but provided by the Product supplier or other third party under a separate agreement to be provided by Pro4ia or Pro4ia’s supplier. Customer agrees to comply with the terms and conditions of, and, if Pro4ia so requests, to execute, any separate agreement provided with any Hardware, Software and/or Third Party Services and deliver it to Pro4ia or Pro4ia’s supplier. If Customer breaches such agreement(s), Pro4ia and Pro4ia’s supplier each shall have the right to enforce such agreement(s) directly against Customer. Software and Computer Programs, the definition of which includes source code, object code, documentation, manuals and other code, which are owned by Pro4ia, or which are licensed by Pro4ia from third parties shall not be deemed “Work Product” or “Work for Hire” under any Sales Order and Customer shall not acquire the right to use such Software, Computer Programs, or parts thereof, except to the extent necessary to maintain the integrity and operation of data, formulas and program configurations installed by Pro4ia under the provisions of the Sales Order.
2. Delivery: Unless otherwise set forth in the Sales Order, all shipments under this Agreement are F.O.B. (U.S. / North America definition) Pro4ia’s or Pro4ia’s supplier’s shipping dock. Delivery of Products to a commercial carrier at Pro4ia’s or Pro4ia’s supplier’s loading dock (or as otherwise designated by Pro4ia, such as the electronic transmission of Software) will constitute delivery to Customer, and any risk of loss and any cost and responsibility for insurance, claims, delivery, loss or damage (including, if applicable, placement and storage) after or in connection with such delivery shall be borne by Customer. Customer acknowledges that unless otherwise indicated in the Sales Order, (i) shipping dates are estimates only which are not guaranteed and are based upon prompt receipt from Customer of all necessary shipping and other information and (ii) Pro4ia may make delivery in installments, in which case each installment shall be separately invoiced and paid for by Customer without regard to subsequent deliveries.
3. Title and Security Interests: Title to Hardware and/or the license to Software shall pass to Customer when Pro4ia delivers such Products to Customer as described above. However, Pro4ia reserves a purchase money security interest in each Product and in any proceeds thereof, including insurance proceeds, until it receives the amounts due and Customer will execute and deliver all documents reasonably requested by Pro4ia to protect and maintain Pro4ia’s security interest. Customer also authorizes Pro4ia to act as its agent and attorney-in-fact (where permitted by law) for the limited purpose of preparing, executing in Customer’s name, and filing on its behalf, a financing statement (for example, a UCC-1) to perfect Pro4ia’s purchase money security interest in each Product. Until title or license has passed to Customer, Customer shall not cause nor permit the Product to be sold, leased, or subject to a lien or other encumbrance other than Pro4ia’s security interest.
4. Installation: Customer acknowledges that (i) Pro4ia is not responsible for installation, maintenance, upgrading, enhancement, or error correction, of the Products or for any training or other services relating thereto (unless specifically set forth in a Sales Order) and (ii) in order to obtain the benefits desired from the Products, Customer may need to obtain and integrate with the Products various other products which are not provided by Pro4ia under this Agreement. Customer is responsible for obtaining any such additional services and products under a separate agreement from Pro4ia, the Product supplier or other qualified third party. Unless otherwise provided in a relevant Sales Order, Customer shall not delay acceptance or withhold any payment otherwise due to Pro4ia based on the installation, testing, acceptance or performance of any Products.
5. Cancellation & Returns: Pro4ia may cancel any or all of the Products in a Sales Order if its supplier does not accept or cancels the applicable order from Pro4ia. Product returns are solely at the discretion of Pro4ia which, if accepted, are subject to the written authorization of the distributor and/or manufacturer.  Restocking and/or penalty fees may apply and are payable by Customer.
6. Pro4ia Referral Partners: Pro4ia has agreements with certain organizations to promote, market and support certain Products (“Referral Partners”). When Customer orders Products under this Agreement marketed to Customer by Pro4ia’s Referral Partners, Pro4ia confirms that it is responsible for providing the Products to Customer under the terms of this Agreement. Pro4ia is not responsible for (a) the actions of the Referral Partners, (b) any additional obligations Referral Partners have to Customer or (c) any products or services that Referral Partners supply to Customer under their own agreements.
7. Product Warranty: Pro4ia PROVIDES PRODUCTS “AS IS” WITHOUT WARRANTIES OF ANY KIND EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. HOWEVER, THIRD PARTY MANUFACTURER OR SUPPLIERS MAY PROVIDE THEIR OWN WARRANTIES TO CUSTOMER WITH THEIR PRODUCTS.

SERVICES: Sections 8 thru 15 apply to any Sales Order in which Customer has agreed to acquire Service(s) from Pro4ia. In the event Customer only acquires Product(s) these terms shall not apply:
8. Services, Work Product Ownership and License: Subject to the terms herein, Customer agrees to purchase, and Pro4ia agrees to perform, the Services set forth in a Sales Order. Pro4ia may deliver Work Product to Customer. Pro4ia or third parties shall retain all right, title and interest, including ownership of copyright in such Work Product. Pro4ia grants Customer an irrevocable, nonexclusive, paid-up license to access, use, execute, reproduce, perform and distribute copies of such Work Product for Customer’s internal use, including the right to authorize others to do so on Customer’s behalf.
9. Parties Independent: In making and performing this Agreement, the parties act and shall act at all times as independent contractors and nothing contained in this Agreement shall be construed or implied to create an agency, partnership, employer and employee relationship or any form of fiduciary relationship between Customer and Pro4ia or between any party and any officer or employee of the other party.
10. Services Warranty: Pro4ia warrants that each Service will be performed using reasonable care and skill and according to its current description (including any completion criteria) contained in the relevant Sales Order. THIS WARRANTY IS CUSTOMER’S EXCLUSIVE WARRANTY AND REPLACES ALL OTHER WARRANTIES OR CONDITIONS EXPRESS OR IMPLIED. FURTHER, PRO4IA DOES NOT WARRANT UNINTERRUPTED OR ERROR-FREE OPERATION OF ANY SERVICE OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE SERVICE.
11. Personnel; Freedom of Action: Each party is responsible for the supervision, direction and control of its respective personnel. Pro4ia reserves the right to determine the assignment of its personnel and Pro4ia personnel shall not be restricted or prevented from performing services for others that are similar to the Services provided to Customer. Pro4ia may perform its obligations through its affiliates, subsidiaries or subcontractors selected by Pro4ia; provided, however, that Pro4ia shall not be relieved of its obligations under this Agreement as a result of such use.
12. Cooperation: Customer shall, at its own expense, provide Pro4ia with all reasonable cooperation necessary or appropriate for completion of the Services, including (if necessary) providing access to properly equipped facilities and obtaining all Required Consents necessary for Pro4ia to provide the Services. “Required Consents” are any consents or approvals required to give Pro4ia the right or license to access, use, and/or modify any third party software, hardware or other products or information used by Customer without infringing the ownership or license rights (including patent and copyright) of the providers or owners of such items. When Pro4ia's performance of the Services requires or is contingent upon Customer's performance of an obligation (including providing Required Consents, approval or notification or taking a recommended corrective action) under this Agreement or a relevant Sales Order, and Customer delays or withholds its performance beyond the agreed time period (or beyond five business days, if a time period is not specified), Pro4ia will be relieved of its obligation to perform such Services entirely or, if it is reasonable for Pro4ia to perform once Customer performs, until a reasonable period following Customer's performance of its responsibility.
13. Non-Solicitation / Non-Hire of Pro4ia Employees or Independent Contractors:
A) Unless otherwise agreed to by a senior executive of Pro4ia in writing, the Customer agrees: (i) not to solicit the employment of any Pro4ia employee while Pro4ia is performing services for Customer, and for a period of one year after the termination of any work performed for Customer in conjunction with the Proposal; and (ii) not to employ any Pro4ia employee or independent contractor working for Pro4ia in any manner while Pro4ia is performing services for the Customer and for a period of one year after the termination of any work relevant to the Proposal. Notwithstanding anything to the contrary contained herein, in the event that any Pro4ia employee or independent contractor working for Pro4ia who performed any work or services for Customer in connection with the Proposal, is hired or employed by Customer in any position or manner whatsoever, on a full-time or part-time basis, as an employee, independent contractor or consultant, pursuant to an agreement or on an at-will basis, within one year after the termination or completion of services rendered to Customer by Pro4ia in connection with the Proposal, then Customer shall notify Pro4ia in writing, prior to the date that such employment commences of the name of the employee, the date upon which such employment will commence, and shall provide to Pro4ia an itemized statement of the compensation and benefits to be paid to such employee which shall include the base salary, commissions, bonuses, and the cost of any health benefits and retirement benefits to be paid or provided to such employee during the first year of employee’s employment by Customer (hereinafter the “Annual Compensation Package”), and Customer shall pay and remit to Pro4ia, within thirty days of the commencement of such employment, a sum equal to fifty percent of the total first year Annual Compensation Package to be paid to the employee, regardless of whether such employee remains employed or is to be employed by Customer for a period less than one year.
B) The parties agree that payment of monetary damages would not be an adequate remedy to protect the rights of Pro4ia set forth in paragraph 1 of this agreement; therefore, if it so elects, Pro4ia shall be entitled to institute and prosecute proceedings in any court of competent jurisdiction, in law or equity, to seek a temporary, preliminary or permanent injunction to enforce its rights. In appropriate circumstances, Pro4ia may apply to an appropriate court for a preliminary and/or temporary injunction pending the outcome of an arbitration proceeding between the parties.
14. Confidential Information. Each party acknowledges that certain information that it will have access to or acquire from the other party may constitute such other party’s (or its customers’) confidential information including information related to the business, operations, financial information, client and patient data, and certain work product of a party. Each party shall use reasonable efforts to maintain the confidentiality of information or trade secrets provided to or obtained by such party which are either identified as confidential or trade secrets or which a reasonable person should know is confidential. Each party’s obligations shall terminate if the information was in, or enters through no fault of the recipient, the public domain, or was in the recipient’s possession free of any obligation of confidence at the time it was communicated to the recipient by the other party; or was properly disclosed to recipient by another person without restriction or was developed by the recipient independently of any such information.
15. Knowledge Capital: The Knowledge Capital, Methodologies, Software, Computer Programs, and Hardware owned by, “Trade Marked” (™), and/or “Service Marked” (sm) by Pro4ia (including the Methodology known as “PromentuM”), including the framework, documentation, manuals, and database created by Pro4ia shall be and remain at all times the property of Pro4ia, subject to any limited license Pro4ia may supply Customer to permit Customer to use the knowledge capital, methodologies, software, computer programs, and hardware to the extent and for a period of time necessary to maintain the integrity and operation of data, formulas and program configurations installed by Pro4ia under the provisions of the Proposal.

Defined Terms:
“Hardware” is a machine, its features, conversions, upgrades, elements or accessories, or any combination of them. Hardware includes Pro4ia Hardware and third party Hardware.
“Product” is Hardware, Software or a Third-Party Service.
“Sales Order” or “Sales Orders” shall mean one or more quotations, schedules, service orders, statements of work, scopes of work, proposals, work orders, change orders or other transaction-specific documents for Products and/or Services including the applicable prices, to be provided by Pro4ia under this Agreement. Certain Sales Orders may require signature if requested by either Pro4ia or Customer. Unless otherwise specified in the relevant Sales Order, the terms of each Sales Order shall be independent of and shall have no effect on the terms of any other Sales Order.
“Service” or “Services” is the performance of a task, provision of advice and counsel, assistance, or access to a resource (such as access to an information database) Pro4ia makes available to Customer as identified in the relevant Sales Order. Services do not include Third-Party Services.
“Software” is a commercially available computer software program, whether preloaded on Hardware or provided separately, including related licensed materials such as documentation.
“Third-Party Service” of “Third-Party Services” is a service provided by a third party, including services related to Hardware or Software (including maintenance and support services) provided by the supplier or other third party.
“Work Product” means software programs, programming tools, documentation, reports and drawings - or other works of authorship that Pro4ia develops for, or otherwise delivers to, Customer.

©Pro4ia, Inc.

Hosting Terms of Service (Version 2.0)

The Pro4ia Hosting Terms of Service between Pro4ia, Inc. ("we" or "Pro4ia") and the customer who orders Pro4ia services ("you" or "Customer").

THE AGREEMENT:
Your use of Pro4ia Hosting services is governed by a) the Hosting Terms of Service (this document), b) Pro4ia General Terms and Conditions (under separate cover), c) the Pro4ia Hosting Acceptable Use Policy (AUP) (included in this document), and the terms of your Sales Order (under separate cover). When we use the term "Agreement" in any Order, Sales Order, Scope of Work, Work Order, Proposal, Change Order, RFP Response, General Terms and Conditions, Hosting Terms of Service, or Acceptable Use Policy, we are referring collectively to all of them. Sections 1 – 29 of these Terms of Service state the general terms applicable to all Hosting Services, and Sections 30 – 34 state additional terms that will apply only if you elect to purchase the particular services described in those sections. If the individual who submits an Order does so on behalf of a company or other legal entity, the individual represents that he or she has authority to bind that entity to the Agreement. This Agreement is the complete and exclusive agreement between you and Pro4ia regarding its subject matter and supersedes and replaces any prior agreement, understanding, or communication, written or oral.

1. DEFINED TERMS:
Some words used in the Agreement have particular meanings:
"Acceptable Use Policy" or "AUP" means the Pro4ia Hosting Acceptable Use Policy posted in Section 34 of this document as of the date you sign the Order, or as it may be amended pursuant to Section 21 below.
"Business Day" means 8:30 a.m. – 5:30 p.m. Monday through Friday, United States Eastern Time, excluding Pro4ia observed holidays in the United States.
"Confidential Information" means all information disclosed by one of us to the other, whether before or after the effective date of the Agreement, that the recipient should reasonably understand to be confidential, including: (i) for you, all information transmitted to or from, or stored on, the Pro4ia hosting system, (ii) for Pro4ia, unpublished prices and other terms of service, audit and security reports, product development plans, data center designs (including non-graphic information you may observe on a tour of a data center), server configuration designs, and other proprietary information or technology, and (iii) for both of us, information that is marked or otherwise conspicuously designated as confidential. Information that is developed by one of us on our own, without reference to the other's Confidential Information, or that becomes available to one of us other than through violation of the Agreement or applicable law, shall not be "Confidential Information" of the other party.
"Junk Mail" means email that is captured by our mail filter and other email that is reported by you to Pro4ia as undesirable.
"Order" means either: (i) the request that you submit to Pro4ia, or (ii) any other written order (either in electronic or paper form) provided to you by Pro4ia for signature that describes the Services you are purchasing, and that is signed by you, either manually or electronically.
"Services" means those services described in the Order.

2. PRO4IA'S OBLIGATIONS:
Contingent on Pro4ia's acceptance of your Order, and subject to these Terms of Service as well as General Terms and Conditions, Pro4ia agrees to provide the Services. Pro4ia agrees to follow security procedures at least as stringent, in Pro4ia's reasonable judgment, as those described in section 35 of this document.
2.1 Pro4ia Hosting Services with a Managed Service Level: If you purchase Pro4ia Hosting Services with a Managed Service Level, then the Pro4ia SLA as defined in your Structured Technology Support (STS) / Managed Service Provider (MSP) scope of work document will apply. You may request support by opening a support ticket or by calling your Pro4ia STS/MSP support team.
2.2 Monitoring and Response: If you purchase Pro4ia Hosting Services with a Managed Service Level, then Pro4ia will provide monitoring and response services as defined in your Structured Technology Support (STS) / Managed Service Provider (MSP) scope of work document.

3. YOUR OBLIGATIONS:
You agree to do each of the following: (i) comply with applicable law and the Pro4ia Hosting Acceptable Use Policy in section 34, (ii) pay when due the fees for the Services, (iii) use reasonable security precautions in light of your use of the Services, (iv) cooperate with Pro4ia's reasonable investigation of outages, security problems, and any suspected breach of the Agreement, (v) keep your billing contact and other account information up to date; and (vi) immediately notify Pro4ia of any unauthorized use of your account or any other breach of security. In the event of a dispute between us regarding the interpretation of applicable law or the AUP, Pro4ia's reasonable determination shall control.

4. ACCESS TO THE SERVICES:
You may access the Services via calling your Pro4ia account representative or support representative. Pro4ia may modify its process at any time, or may transition to new support structures.

5. SERVICE LEVEL AGREEMENT:
The Service Level Agreement (SLA) listed in section 36 is part of this Agreement

6. TERM:
The initial term for each Order begins on the date we make the Services available for your use and continues for the period stated in the Order. If no period is stated in the Order, then the initial term shall be one month. Upon expiration of the initial term, the Order will automatically renew for successive renewal terms of one month each, unless and until one of us gives the other a written notice of non-renewal prior to the expiration of the initial term, or then-current renewal term, as applicable.

7. FEES:
Pro4ia will charge you the fees stated in your Order. Pro4ia will invoice as follows: (i) for recurring fees, in advance, on or around the first day of each billing cycle, and (ii) for non-recurring fees (such as fees for initial set-up, overages, compute cycle fees, and domain name registration) on or around the date incurred, or on or around the first day of the billing cycle that follows the date incurred, at Pro4ia's option; provided that Pro4ia may wait to invoice until the total aggregate fees due are at least $50. Unless otherwise agreed in the Order, your billing cycle will be monthly, beginning on the date that Pro4ia first makes the Services available to you and then prior to the beginning of each new month. Pro4ia may suspend all services (including services provided pursuant to any unrelated Order or other agreement we may have with you) if our invoices are rejected/unpaid for any reason. Pro4ia may charge interest on overdue amounts as described in Pro4ia’s General Terms and Conditions. Charges that are not disputed within sixty (60) days of the date charged are conclusively deemed accurate. You must provide Pro4ia with accurate factual information to help Pro4ia determine if any tax is due with respect to the provision of the Services, and if Pro4ia is required by law to collect taxes on the provision of the Services, you must pay Pro4ia the amount of the tax that is due or provide satisfactory evidence of your exemption from the tax. You authorize Pro4ia to obtain a credit report at any time during the term of the Agreement. Any credit that we may owe you, such as a credit for a SLA remedy (if applicable), will be applied to unpaid fees for services or refunded to you, at our option.

8. FEE INCREASES:
If you are under a month-to-month contract, then we may increase fees at any time on forty-five (45) days advance written notice. If the initial term of your Agreement is longer than one month, then we may increase your fees effective as of the first day of the renewal term that first begins forty-five days from the day of our written notice of a fee increase. In addition, if during the initial term or any renewal term there is an increase in the Producer Price Index over the Producer Price Index reported for the month in which you signed your Order, we may increase your fees by the same percentage as the increase in the Producer Price Index; provided that we may not increase your fees pursuant to this sentence more often than once per twelve months, and we must give you at least thirty days advance written notice of the increase. The "Producer Price Index" means the Producer Price Index for Finished Goods, WPUSOP3000, not seasonally adjusted, and first published as "preliminary" data by the United States Bureau of Labor Statistics in its PPI Detailed Report or successor publication. For historical information on the Producer Price Index, you may visit the Bureau of Labor Statistics website. (Example: if the Producer Price Index for the month in which you sign the Order is 186, and then increases in a subsequent month during the term of the Order to 195, we may increase your fees by up to 4.8%).

9. SUSPENSION:
We may suspend your Services without liability if: (i) we reasonably believe that the Services are being used (or have been or will be used) in violation of the Agreement, (ii) we discover that you are, or are affiliated in any manner with, a person who has used similar services abusively in the past; (iii) you don't cooperate with our reasonable investigation of any suspected violation of the Agreement; (iv) we reasonably believe that your Services have been accessed or manipulated by a third party without your consent, (v) we reasonably believe that suspension of the Services is necessary to protect our network or our other customers, (vi) a payment for the Services is overdue, or (vii) suspension is required by law. We will give you reasonable advance notice of a suspension under this paragraph and a chance to cure the grounds on which the suspension are based, unless we determine, in our reasonable commercial judgment, that a suspension on shorter or contemporaneous notice is necessary to protect Pro4ia or its other customers from imminent and significant operational or security risk. If the suspension was based on your breach of your obligations under the Agreement, then we may continue to charge you the fees for the Services during the suspension, and may charge you a reasonable reinstatement fee (not to exceed $200) upon reinstatement of the Services.

10. TERMINATION FOR CONVENIENCE; EARLY TERMINATION FEE:
You may terminate the Agreement for convenience at any time on thirty days advance written notice. If you terminate the Agreement for convenience, in addition to other amounts you may owe, you must pay an early termination fee equal to any minimum monthly financial commitment you have made for the remaining portion of the then-current term.

11. TERMINATION FOR BREACH:
We may terminate the Agreement for breach on written notice if: (i) we discover that the information you provided to us about yourself or your proposed use of the Services was materially inaccurate or incomplete, (ii) if you are an individual, you were not at least 18 years old or otherwise did not have the legal capacity to enter into the Agreement at the time you submitted the Order for Services, or if you are an entity or fiduciary, the individual submitting the Order for Services did not have the legal right or authority to enter into the Agreement on behalf of the person represented to be the customer, (iii) your payment of any invoiced amount is overdue, and you do not pay the overdue amount within three (3) days of our written notice, (iv) a credit report indicates you no longer meet our reasonable credit criteria, provided that if we terminate on these grounds, we must give you a reasonable opportunity to migrate your environment out of Pro4ia in an orderly fashion, (v) you use your Service in violation of the AUP and fail to remedy the violation within ten (10) days of our written notice, (vi) you violate the AUP more than once, even if you cure each violation, or (vii) you fail to comply with any other provision of the Agreement and do not remedy the failure within thirty (30) days of our notice to you describing the failure.
You may terminate the Agreement for breach on written notice if: (i) we materially fail to provide the Services as agreed and do not remedy that failure within five (5) days of your written notice describing the failure, or (ii) we materially fail to meet any other obligation stated in the Agreement and do not remedy that failure within thirty (30) days of your written notice describing the failure.

12. ACCESS TO DATA:
12.1 You will not have access to your data stored on the Pro4ia Hosting system during a suspension or following termination.
12.2 We may backup the Pro4ia Hosting systems on a periodic basis so that we are able to more quickly restore the systems in the event of a failure. These backups are made on a snap-shot basis and, therefore, capture only the information that exists on the system at the time of the backup. In addition, we may destroy all but the most recent backup. These backups, if performed, may not be available to you or, if available, may not be useful to you outside of the Pro4ia Hosting systems.
12.3 Although the Pro4ia Hosting service may be used as a backup service, you agree that you will maintain at least one additional current copy of your programs and data stored on the Pro4ia Hosting system somewhere other than on the Pro4ia Hosting system.

13. UNAUTHORIZED ACCESS TO YOUR DATA OR USE OF THE SERVICES:
Pro4ia is not responsible to you for unauthorized access to your data or the unauthorized use of the Services unless the unauthorized access or use results from Pro4ia's failure to meet its security obligations stated in the Agreement. You are responsible for the use of the Services by any employee of yours, any person to whom you have given access to the Services, and any person who gains access to your data or the Services as a result of your failure to use reasonable security precautions, even if such use was not authorized by you.

14. DISCLAIMERS:
We do not promise that the Services will be uninterrupted, error-free, or completely secure. You acknowledge that there are risks inherent in Internet connectivity that could result in the loss of your privacy, Confidential Information, and property. Pro4ia has no obligation to provide security other than as stated in this Agreement. We disclaim any and all warranties not expressly stated in the Agreement, including the implied warranties of merchantability, fitness for a particular purpose, and noninfringement. You are solely responsible for the suitability of the service chosen. If you have not made the minimum financial commitment for support and SLA coverage, the Services are provided AS IS. Any voluntary services we may perform for you at your request and without any additional charge are provided AS IS.

15. EXPORT MATTERS:
You represent and warrant that you are not on the United States Department of Treasury, Office of Foreign Asset Controls list of Specially Designated National and Blocked Persons and are not otherwise a person to whom Pro4ia is legally prohibited to provide the Services. You may not use the Services for the development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles, in a country listed in Country Groups D: 4 and D: 3, as set forth in Supplement No. 1 to the Part 740 of the United States Export Administration Regulations, nor may you provide administrative access to the Service to any person (including any natural person or government or private entity ) that is located in or is a national of Cuba, Iran, Libya, Sudan, North Korea or Syria or any country that is embargoed or highly restricted under United States export regulations.

16. CONFIDENTIAL INFORMATION:
Each of us agrees not to use the other's Confidential Information except in connection with the performance or use of the Services, as applicable, the exercise of our respective legal rights under the Agreement, or as may be required by law. Each of us agrees not to disclose the other's Confidential Information to any third person except as follows:
i. To our respective service providers, agents, and representatives, provided that such service providers, agents, or representatives agree to confidentiality measures that are at least as stringent as those stated in these General Terms and Conditions.
ii. To law enforcement or government agency if required by a subpoena or other compulsory legal process, or if either of us believes, in good faith, that the other's conduct may violate applicable criminal law as required by law; or
iii. In response to a subpoena or other compulsory legal process, provided that each of us agrees to give the other written notice of at least seven days prior to disclosing Confidential Information under this subsection (or prompt notice in advance of disclosure, if seven days advance notice is not reasonably feasible), unless the law forbids such notice.

17. LIMITATION ON DAMAGES:
Our obligations to you are defined by this Agreement. We are not liable to you for failing to provide the Services unless the failure results from a breach of this Agreement, or results from our gross negligence or willful misconduct. Your right of service termination, as stated in section 11 (Termination for Breach) is your sole and exclusive remedy for unavailability of the Services.
Neither of us (nor any of our employees, agents, affiliates or suppliers) is liable to the other for any lost profits or any other indirect, special, incidental or consequential loss or damages of any kind, or for any loss that could have been avoided by the damaged party's use of reasonable diligence, even if the party responsible for the damages has been advised or should be aware of the possibility of such damages. In no event shall either of us be liable to the other for any punitive damages.
Notwithstanding anything in the Agreement to the contrary, except for liability based on willful misconduct or fraudulent misrepresentation, and liability for death or personal injury resulting from Pro4ia's negligence, the maximum aggregate monetary liability of Pro4ia and any of its employees, agents, suppliers, or affiliates in connection with the Services, the Agreement, and any act or omission related to the Services or Agreement, under any theory of law (including breach of contract, tort, strict liability, violation of law, and infringement) shall not exceed the greater of (i) the amount of fees you paid for the Services for the six months prior to the occurrence of the event giving rise to the claim, or (ii) Five Hundred Dollars ($500.00).

18. INDEMNIFICATION:
If we, our affiliates, or any of our or their respective employees, agents, or suppliers (the "Pro4ia Indemnitees") are faced with a legal claim by a third party arising out of your actual or alleged gross negligence, willful misconduct, violation of law, failure to meet the security obligations required by the Agreement, violation of the AUP, or violation of Section 15 (Export Matters) of these Terms and Conditions, then you will pay the cost of defending the claim (including reasonable attorney fees) and any damages award, fine, or other amount that is imposed on the Pro4ia Indemnitees as a result of the claim. Your obligations under this subsection include claims arising out of the acts or omissions of your employees, any other person to whom you have given access to the Services, and any person who gains access to the Services as a result of your failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by you. If you resell the Services, the grounds for indemnification stated above also include any claim brought by your customers or end users arising out of your resale of the Services. We will choose legal counsel to defend the claim, provided that these decisions must be reasonable and must be promptly communicated to you. You must comply with our reasonable requests for assistance and cooperation in the defense of the claim. We may not settle the claim without your consent, although such consent may not be unreasonably withheld. You must pay expenses due under this Section as we incur them.

19. SOFTWARE:
In addition to the terms of our Agreement, your use of any licensed software is governed by the manufacturer’s license terms.

20. WHO MAY USE THE SERVICE:
You may resell the Services, but you are responsible for use of the Services by any third party to the same extent as if you were using the Services yourself. If you resell any part of the Services that includes software, then you must include all required terms mentioned in Section 19 above in a written agreement with your customers as well as the content of Section 23 (No High Risk Use). Unless otherwise agreed, Pro4ia will provide support only to you, not to any other person you authorize to use the Services. There are no third party beneficiaries to the Agreement, meaning that third parties do not have any rights against either of us under the Agreement.

21. CHANGES TO THE ACCEPTABLE USE POLICY:
We may change our Acceptable Use Policy, provided that any changes are reasonable and consistent with applicable law and industry norms. Any such changes made during the term of your Agreement will become effective to your account upon the first to occur of: (i) renewal, (ii) your execution of a new/additional Order for your account that incorporates the revised AUP or General Terms, or (iii) thirty (30) days following our notice to you describing the change. If the change materially and adversely affects you, you may terminate the Agreement by giving us written notice of termination on such grounds no later than thirty (30) days following the date the change became effective for your account, and we will not enforce the change with respect to that account for thirty (30) days following the date of your notice. If you terminate your Service because the change adversely affects you, we may decide not to enforce that change with respect to your account and keep your Agreement in place for the remainder of the term.

22. NOTICES:
Your routine or non-routine communications regarding the Services should be sent to your Pro4ia Hosting account team. Pro4ia's communications regarding the Services and legal notices will be sent to the individual(s) you designate as your contact(s) on your account either by electronic mail, United States mail, or overnight courier. Notices are deemed received as of the time delivered, or if that time does not fall within a Business Day, as defined below, as of the beginning of the first Business Day following the time delivered. For purposes of counting days for notice periods, the Business Day on which the notice is deemed received counts as the first day. Notices must be given in the English language.

23. NO HIGH RISK USE:
You may not use the Services in any situation where failure or fault of the Services could lead to death or serious bodily injury of any person, or to physical or environmental damage. For example, you may not use, or permit any other person to use, the Services in connection with aircraft or other modes of human mass transportation, nuclear or chemical facilities, or Class III medical devices under the Federal Food, Drug and Cosmetic Act.

24. OWNERSHIP OF INTELLECTUAL PROPERTY:
Each of us retains all right, title and interest in and to our respective trade secrets, inventions, copyrights, and other intellectual property. Any intellectual property developed by Pro4ia during the performance of the Services shall belong to Pro4ia unless we have agreed with you in advance in writing that you shall have an interest in the intellectual property.

25. IP ADDRESSES:
Upon expiration or termination of the Agreement, you must discontinue use of the Services and relinquish use of the IP addresses and server names assigned to you by Pro4ia in connection with Services, including pointing the DNS for your domain name(s) away from Pro4ia Services. You agree that Pro4ia may, as it determines necessary, make modifications to DNS records and zones on Pro4ia managed or operated DNS servers and services.

26. ASSIGNMENT/SUBCONTRACTORS:
You may not assign the Agreement without Pro4ia's prior written consent. We may assign the Agreement in whole or in part as part of a corporate reorganization or a sale of our business, and we may transfer your Confidential Information as part of any such transaction. Pro4ia may use third party service providers to perform all or any part of the Services, but Pro4ia remains responsible to you under this Agreement for work performed by its third party service providers to the same extent as if Pro4ia performed the Services itself.

27. FORCE MAJEURE:
Neither of us will be in violation of the Agreement if the failure to perform the obligation is due to an event beyond our control, such as significant failure of a part of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry.

28. GOVERNING LAW, LAWSUITS:
The Agreement is governed by the laws of the State of New York. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. You waive all objections to Pro4ia’s choice of venue and agree not to dispute personal jurisdiction or venue in these courts. You agree that you will not bring or participate in any class action lawsuit against Pro4ia or any of its employees or affiliates. Each of us agrees that we will not bring a claim under the Agreement more than two years after the time that the claim accrued.

29. SOME AGREEMENT MECHANICS:
These Terms of Service may have been incorporated in your Order by reference to pages on the Pro4ia website (http://www.pro4ia.com/AboutPro4ia/Terms/). Although we may from time to time revise the General Terms and Conditions as well as the Hosting Terms of Service posted on that page, those revisions will not be effective as to an Order that we accepted prior to the date we posted the revision, and your Order will continue to be governed by the Terms of Service posted on the effective date of the Order. However, any amended Terms of Service will become effective on the first day of the renewal period that follows the date that the new Terms of Service were posted by at least thirty days. In addition, if over time you sign multiple Orders for a single account, then the Terms of Service incorporated in the latest Order posted on the effective date of the latest Order will govern the entire account. Pro4ia may accept or reject any Order you submit in its sole discretion. Pro4ia's provisioning of the Services described in an Order shall be Pro4ia's acceptance of the Order.
An Order may be amended by a formal written agreement signed by both parties, or by an exchange of correspondence, including electronic mail, that includes the express consent of an authorized individual for each of us. Any such correspondence that adds or modifies Services in connection with an account established by an Order shall be deemed to be an amendment to that Order, notwithstanding the fact that the correspondence does not expressly refer to the Order.
Other than as stated herein, the Agreement may be modified only by a formal document signed by both parties.
If there is a conflict between the terms of any of the documents that comprise the Agreement, the documents will govern in the following order: Order, Terms of Service, and the Acceptable Use Policy. If any part of the Agreement is found unenforceable by a court or other tribunal, the rest of the Agreement will nonetheless continue in effect, and we agree that the tribunal may reform the unenforceable part if it is possible to do so consistent with the material economic incentives of the parties resulting in this Agreement. Each of us may enforce each of our respective rights under the Agreement even if we have waived the right or failed to enforce the same or other rights in the past. Our relationship is that of independent contractors and not business partners. Neither of us is the agent for the other, and neither of us has the right to bind the other on any agreement with a third party. The captions in the Agreement are for convenience only and are not part of the Agreement. The use of the word "including" in the Agreement shall be read to mean "including without limitation." Sections 1, 7, 10, 16, 17, 18, 22, 24, 28, 29, 33 and all other provisions that by their nature are intended to survive expiration or termination of the Agreement shall survive expiration or termination of the Agreement.
If you have made any change to the Agreement documents that you did not bring to our attention in a way that is reasonably calculated to put us on notice of the change, the change shall not become part of the Agreement.
The Agreement may be signed in multiple counterparts, which, taken together, will be considered one original. Facsimile signatures, signatures on an electronic image (such as .pdf or .jpg format), and electronic signatures shall be deemed to be original signatures.

ADDITIONAL TERMS FOR CERTAIN SERVICES:
30. DOMAIN NAME REGISTRATION SERVICES: If you register, renew, or transfer a domain name through Pro4ia, Pro4ia will submit the request to its domain name services provider (the "Registrar") on your behalf. Pro4ia's sole responsibility is to submit the request to the Registrar. Pro4ia is not responsible for any errors, omissions, or failures of the Registrar. Your use of domain name services is subject to the applicable legal terms of the Registrar. You are responsible for closing any account with any prior reseller of or registrar for the requested domain name, and you are responsible for responding to any inquiries sent to you by the Registrar.

31. MAIL SERVICES (If hosted by Pro4ia):
31.1 Access: You may access your Mail Services over the web as defined in your Agreement.
31.2 Management of the Service: Pro4ia will assist in provisioning your initial mail environment, but you are otherwise responsible for managing your mail service, including adding mailboxes, adding wireless or other service components, adding storage capacity, managing settings, and configuring spam filters (unless otherwise stated in your MSP/STS Agreement).
31.3 Filtering: As stated in your MSP/STS Agreement. You acknowledge that the technological limitations of a filtering service will likely result in the capture of some legitimate email and the failure to capture some unwanted email, including email infected with viruses. You hereby release Pro4ia and its employees, agents, affiliates, and third party suppliers from any liability for damages arising from the failure of Pro4ia's filtering services to capture unwanted email or from the capture of legitimate email, or from a failure of your email to reach its intended recipient as a result of a filtering service used by the recipient or the recipient's email service provider.
31.4 Memory Limitations: Mail that exceeds the storage limit when received may be permanently lost. You may adjust the storage capacity of your individual mailboxes via the control panel, and it is your obligation to monitor and adjust the storage capacity of individual mailboxes as needed. An individual email message that exceeds the per-message size limit may also be permanently lost.
31.5 Content Privacy: Your email messages and other items sent or received via the mail service will include: (i) the content of the communication ("content"), and (ii) certain information that is created by the systems and networks that are used to create and transmit the message (the "message routing data"). The content includes things like the text of email messages and attached media files, and is generally the information that could be communicated using some media other than email (like a letter, telephone call, CD, DVD, etc.) The message routing data includes information such as server hostnames, IP addresses, timestamps, mail queue file identifiers, and spam filtering information, and is generally information that would not exist but for the fact that the communication was made via email. The content of your items is your Confidential Information and is subject to the restrictions on use and disclosure described in these Terms of Service. However, you agree that we may view and use the message routing data for our general business purposes, including maintaining and improving security, improving our services, and developing products. In addition, you agree that we may disclose message routing data to third parties in aggregate statistical form, provided that we do not include any information that could be used to identify you.
31.6 Usage Data: We collect and store information related to your use of the Services, such as use of SMTP, POP3, IMAP, and filtering choices and usage. You agree that we may use this information for our general business purposes and may disclose the information to third parties in aggregate statistical form, provided that we do not include any information that could be used to identify you.

32. CONTENT DELIVERY SERVICES:
Content that you distribute using our content delivery services may not be as secure as content stored on the Cloud. You should use our content deliver services only for content that you intend to distribute to the public via your website.

33. BETA SERVICES:
If you elect to participate in any beta test of a Pro4ia Service (a "Beta Service"), then your use of the Beta Service is subject to the following terms:
• You acknowledge that the Beta Service is a pre-release version and may not work properly.
• You acknowledge that your use of the Beta Service may expose you to unusual risks of operational failures.
• You should not use the pre-release version of the Beta Service in a live production environment. You must not use the Beta Service in any hazardous environments, life support, or weapons systems.
• We may terminate the Beta Service at any time, in our sole discretion.
• The commercially released version of the Beta Service may change substantially from the pre-release version, and programs that use or run with the pre-release version may not work with the commercial release or subsequent releases.
• You are not entitled to any service level credits under our service level guaranties for downtime or other problems that may result from your testing.
• During the beta test we will provide support for your use of the service only during our normal business hours – 8:30 a.m. – 5:30 p.m. Eastern Time, and not 24x7 as with certain defined services.
• You agree to provide prompt feedback regarding your experience with the Beta Service in a form reasonably requested by us, including information necessary to enable us to duplicate errors or problems you experience. You agree that we may use your feedback for any purpose, including product development purposes. At our request you will provide us with comments that we may use publicly for press materials and marketing collateral. Any intellectual property inherent in your feedback or arising from your testing of the service shall be owned exclusively by Pro4ia.
• You agree that all information regarding your beta test, including your experience with and opinions regarding the Beta Service, is "Confidential Information" of Pro4ia, as defined in these Terms of Service, and may not be disclosed to a third party or used for any purpose other than providing feedback to Pro4ia.
• The Beta Service is provided "AS IS" with no warranty whatsoever.
• To the extent permitted by applicable law, Pro4ia disclaims any and all warranties with respect to the Beta Service including the implied warranties of merchantability, fitness for a particular purpose, and non-infringement.
• The maximum aggregate liability of Pro4ia and any of its employees, agents, affiliates, or suppliers, under any theory of law (including breach of contract, tort, strict liability, and infringement) for harm to you arising from your use of the Beta Service shall be a payment of money not to exceed Five Hundred Dollars ($500.00).

34. Hosting Acceptable Use Policy (AUP):
Your services may be suspended or terminated for violation of this AUP in accordance with the Pro4ia Hosting Terms of Service. Capitalized terms used in this AUP shall have the meaning given in the Terms of Service. Inquiries regarding this policy should be directed to info@pro4ia.com.
34.01 Abuse: You may not use the Pro4ia Hosting network or Services to engage in, foster, or promote illegal, abusive, or irresponsible behavior, including:
• Use of an Internet account or computer without the owner's authorization;
• Collecting or using email addresses, screen names or other identifiers without the consent of the person identified (including, without limitation, phishing, Internet scamming, password robbery, spidering, and harvesting);
• Collecting or using information without the consent of the owner of the information;
• Use of any false, misleading, or deceptive TCP-IP packet header information in an email or a newsgroup posting;
• Use of the service to distribute software that covertly gathers information about a user or covertly transmits information about the user;
• Use of the service for distribution of advertisement delivery software unless: (i) the user affirmatively consents to the download and installation of such software based on a clear and conspicuous notice of the nature of the software, and (ii) the software is easily removable by use of standard tools for such purpose included on major operating systems; (such as Microsoft's "ad/remove" tool); or
• Any conduct that is likely to result in retaliation against the Pro4ia Hosting network or website, or the Pro4ia Hosting employees, officers or other agents, including engaging in behavior that results in any server being the target of a denial of service attack (DoS).
34.02 Excessive Use of System Resources: You may not use any shared system provided by Pro4ia in a way that unnecessarily interferes with the normal operation of the shared system, or that consumes a disproportionate share of the resources of the system. For example, we may prohibit the automated or scripted use of email services if it has a negative impact on the mail system, or we may require you to repair coding abnormalities in your hosted code if it unnecessarily conflicts with other Hosting customers’ use of the services. You agree that we may quarantine or delete any data stored on a shared system if the data is infected with a virus, or is otherwise corrupted, and has the potential to infect or corrupt the system or other customers' data that is stored on the same system.
34.03 Bulk or Commercial E-Mail: You must obtain Pro4ia Hosting advance approval for any bulk or commercial e-mail, which will not be given unless you are able to demonstrate, at a minimum, that:
• your intended recipients have given their consent to receive e-mail via some affirmative means, such as an opt-in procedure;
• your procedures for soliciting consent include reasonable means to ensure that the person giving consent is the owner of the e-mail address for which the consent is given;
• you retain evidence of the recipient's consent in a form that may be promptly produced on request, and you honor the recipient's and Pro4ia Hosting requests to produce consent evidence within 72 hours of receipt of the request;
• You have procedures in place that allow a recipient to revoke their consent — such as a link in the body of the email, or instructions to reply with the word "Remove" in the subject line; you honor revocations of consent within 48 hours, and you notify recipients that the revocation of their consent will be implemented in 48 hours;
• You must post an email address for complaints (such as abuse@yourdoman.com) in a conspicuous place on any website associated with the email, you must register that address at abuse.net, and you must promptly respond to messages sent to that address;
• You must have a Privacy Policy posted for each domain associated with the mailing;
• You have the means to track anonymous complaints;
• You must not obscure the source of your e-mail in any manner. Your e-mail must include the recipient's e-mail address in the body of the message or in the "TO" line of the e-mail;
• You must not attempt to send any message to an email address if 3 consecutive delivery rejections have occurred and the time between the third rejection and the first rejection is longer than fifteen days.
These policies apply to messages sent using the Services, or to messages sent from any network by you or any person on your behalf that directly or indirectly refer the recipient to a site hosted via the Services. In addition, you may not use a third party e-mail service that does not practice similar procedures for all its customers. These requirements apply to distribution lists created by third parties to the same extent as if the list were created by you. The Pro4ia Hosting service may test and otherwise monitor your compliance with its requirements, including requesting opt-in information from a random sample of your list at any time. In addition, the Pro4ia Hosting may block the transmission of email that violates these provisions.
34.04 Authenticated SMTP Policy: In addition to the requirements above, you may not send email messages of similar content through Pro4ia Hosting SMTP servers to more than two-hundred and fifty (250) recipients. Attempts to circumvent this restriction by breaking up bulk email over time, using multiple accounts, or other means will be a violation of this restriction. The Pro4ia Hosting may block mail that violates this AUP. In addition, your mail services may be suspended or terminated for violation of this AUP in accordance with the Terms of Service.
34.05 Mail Relays: Generally, we do not allow bulk or commercial e-mail to be sent to more than five-thousand (5,000) users per day at a rate of 250 messages every 20 minutes. If you would like to send more than 5,000 messages per day, please contact a member of our support team for additional information.
34.06 Vulnerability Testing: You may not attempt to probe, scan, penetrate or test the vulnerability of a Pro4ia Hosting system or network or to breach Pro4ia Hosting security or authentication measures, whether by passive or intrusive techniques, without Pro4ia’s express written consent.
34.07 Newsgroup, Chat Forums, Other Networks: You must comply with the rules and conventions for postings to any bulletin board, chat group or other forum in which you participate, such as IRC and USENET groups including their rules for content and commercial postings. These groups usually prohibit the posting of off-topic commercial messages, or mass postings to multiple forums. You must comply with the rules of any other network you access or participate in using your the Pro4ia Hosting services.
34.08 Offensive Content: You may not publish, transmit or store on or via the Pro4ia Hosting network and equipment any content or links to any content that the Pro4ia Hosting reasonably believes:
• Constitutes, depicts, fosters, promotes or relates in any manner to child pornography, bestiality, or non-consensual sex acts;
• is excessively violent, incites violence, threatens violence or contains harassing content or hate speech;
• is unfair or deceptive under the consumer protection laws of any jurisdiction, including chain letters and pyramid schemes;
• is defamatory or violates a person’s privacy;
• creates a risk to a person’s safety or health, creates a risk to public safety or health, compromises national security or interferes with a investigation by law enforcement;
• improperly exposes trade secrets or other confidential or proprietary information of another person;
• is intended to assist others in defeating technical copyright protections;
• infringes on another person’s copyright, trade or service mark, patent or other property right;
• promotes illegal drugs, violates export control laws, relates to illegal gambling or illegal arms trafficking;
• is otherwise illegal or solicits conduct that is illegal under laws applicable to you or to the Pro4ia Hosting; or
• is otherwise malicious, fraudulent or may result in retaliation against the Pro4ia Hosting by offended viewers.
34.09 Copyrighted Material: You may not use the Pro4ia Hosting network or Services to download, publish, distribute, or otherwise copy or use in any manner any text, music, software, art, image or other work protected by copyright law unless:
• you have been expressly authorized by the owner of the copyright for the work to copy the work in that manner; or
• you are otherwise permitted by established copyright law to copy the work in that manner.
It is the Pro4ia Hosting policy to terminate in appropriate circumstances the services of customers who are repeat infringers.
34.1 Other:
• You must have valid and current information on file with your domain name registrar for any domain hosted on the Pro4ia Hosting network.
• You may only use IP addresses assigned to you by the Pro4ia Hosting in connection with you’re the Pro4ia Hosting services.
• You agree that if the Pro4ia Hosting IP numbers assigned to your account are listed on an abuse database like Spamhaus, you will be in violation of this AUP, and the Pro4ia Hosting may take reasonable action to protect its IP numbers, including suspension and/or termination of your service, regardless of whether the IP numbers were listed as a result of your actions;
• You agree that we may quarantine or delete any data stored on a shared system if the data is infected with a virus, or is otherwise corrupted, and has the potential to infect or corrupt the system or other customers’ data that is stored on the same system.
• You agree that if you register a DNS record or zone on Pro4ia managed or operated DNS servers or services for a domain of which you are not the registrant or administrative contact according to the registrars WHOIS system, that, upon request from the registrant or administrative contact according to the registrars WHOIS system, Pro4ia may modify, transfer, or delete such records or zones.
34.2 SLA: No credit will be available under the Pro4ia Hosting Service Level Agreement for interruptions of service resulting from AUP violations.


35. Security Practices:
35.1 Physical Access: The Pro4ia servers used to provide the Services will be located in a controlled access data center operated by Pro4ia, Inc. or a Pro4ia affiliated company. Access to the datacenter will be restricted to Pro4ia employees or its agents who need access for the purpose of providing the services. The data center will be staffed as agreed in the STS/MSP agreement. Entrance to the data center will be authorized by proximity-based access cards or other approved security authentication methods.
35.2 Pro4ia Personnel:
• Screening: Pro4ia will perform pre-employment background screening of its employees who have access to customers' accounts.
• Access: Pro4ia will restrict the use of administrative access codes for customer accounts to its employees and other agents who need the access codes for the purpose of providing the services. Pro4ia personnel who use access codes shall be required to log on using an assigned user name and password.
35.3 Reports of and Response to Security Breach: Pro4ia will immediately report to you any unauthorized access or release of your information of which we become aware. Upon request, we will promptly provide to you all information and documentation that we have available to us in connection with any such event.
36. Pro4ia Hosting Service Level Agreement (SLA):
36.1 Network: We aim for a data center network uptime availability of 99.9% of the time in any given monthly billing period, excluding scheduled maintenance.
36.2 Data Center Infrastructure: We aim for a data center HVAC and power uptime of 99.9% of the time in any given monthly billing period, excluding scheduled maintenance.
36.3 Hosting Server: We aim for an uptime availability of 99.9% for all hosting / cloud components. If a failure occurs, we aim for restoration or repair within one hour of problem identification.
36.4 Migration: If a server migration is required because of host degradation, we will notify you at least 24 hours in advance of beginning the migration, unless we determine in our reasonable judgment, that we must begin the migration sooner to protect your hosting / cloud server data. Either way, we aim for a migration that will be complete within six hours of the time that we begin the migration.
36.5 Credits: If we fail to meet an aimed-for SLA stated above, your right of service termination, as stated in section 11 (Termination for Breach) is your sole and exclusive remedy for unavailability of the Services.
37. Definitions:
For purposes of this Service Level Guaranty:
• "hosting server" means your unique virtual machine instance;
• "cloud server host" means the physical server which hosts your cloud server;
• "data center network" means the portion of The Pro4ia Hosting network extending from the network egress point of your cloud server host to the outbound port of the data center border router;
• "power" includes UPSs, PDUs and cabling, but does not include the power supplies in cloud server hosts;
• "scheduled maintenance" means maintenance that is announced at least five business days in advance.

Pro4ia Cloud Backup & Restore Terms and Conditions 

1. Definitions and interpretations can be found at http://www.pro4ia.com/AboutPro4ia/Terms/.
2. Pro4ia, Inc. shall have no liability should there be any delay in the provision of the Service.
2.1 Pro4ia, Inc. does not make any independent representations or warranties with respect to any Customer Equipment. Any third party warranties are the exclusive remedies of Customer with respect to such Equipment.
2.2 If, in Pro4ia, Inc.’s sole discretion, Pro4ia, Inc. judges that it is reasonable to do so for the purposes of repair, maintenance or improvement of the Equipment, Software and/or Service or any part thereof, Pro4ia, Inc. reserves the right to suspend provision of the Service. Pro4ia, Inc. reserves the right to limit Customer bandwidth utilization.
2.3 Pro4ia, Inc. reserves the right to suspend provision of the Service or any part thereof for the purpose of carrying out or implementing such repair, maintenance or improvement, provided that in the event of such suspension Pro4ia, Inc. will use its reasonable endeavors to ensure that reasonable notice is given to Customer and minimum disruption to the Service is caused.
2.4 Pro4ia, Inc. may also suspend the Service or any part thereof or terminate the Agreement without liability on its part if the provision of the Service or the relevant part of the Service is prohibited by law, statute, legislation, order, regulation or guidance issued by a court of law, governmental body or regulatory body.
3. The Agreement shall, subject to Section 6.1, continue for an initial Minimum Service Period (MSP) of 12 months from the Commencement Date. Upon completion of the initial MSP, and each subsequent MSP, the Agreement shall renew for a 1 month MSP thereafter unless notification is provided by either party prior to the expiration of the MSP or the Agreement is terminated by either party in accordance with section 6.1 of this agreement.
3.1 If Customer cancels Pro4ia, Inc. Service prior to the completion of the Minimum Service Period, Customer shall be responsible for an Early Termination Penalty. "Early Termination Penalty" means the Customer has terminated their service prior to the Minimum Service Period and is responsible for payment for the remaining month(s) in the Minimum Service Period.
4. Customer will be responsible for securely storing, managing and deploying when required any encryption key or password which are generated to protect Customer data. If Customer loses the encryption keys or passwords, Pro4ia, Inc. is unable to assist in data restoration. A one-time fee of $50 will be charged to the Customer to re-seed data if Customer loses the encryption key.
4.1 Customer must allow persons authorized by Pro4ia, Inc. to enter Customer’s premises at reasonable times for the purposes of maintenance, improving, upgrading.
4.2 Customer will not, and will not permit any third party, to (a) distribute or allow others to distribute copies of the Software or any part thereof to any third party, (b) tamper with, remove, reproduce, modify or copy the Software or any part thereof, (c) provide, rent, sell, lease or otherwise transfer the Software or any copy or part thereof or use it for the benefit of a third party, or (d) reverse assemble, reverse compile or reverse engineer the Software or any part thereof, or otherwise attempt to discover any Software, source code or underlying proprietary information except as may be permitted by law and which rights cannot be excluded.
4.3 Customer is solely responsible for verification of the accuracy of the data that resides with Pro4ia, Inc. under the client Software and that the service is accurately installed and the appropriate data is sent offsite. For the purposes of this Agreement Pro4ia, Inc. will exclude .jpg, .mpg, .tif, .wav, .m4a, .wma, .mp4, .avi and .mp3 within the service software template.
5. The Monthly and Installation Charges are payable within 10 days after receipt of an invoice, in U.S. currency. All late payments, defined as greater than 45 days from invoice date, will result in Customer being charged interest on any unpaid balances at the rate of two percent (2%) per month or the maximum rate allowed by law. Monthly invoicing is based upon data utilization rounded up to the nearest gigabyte (GB).
5.1 Pro4ia, Inc. will be entitled to increase such charges by giving written notice of the same to Customer not less than 30 days prior to the increase.
5.2 All charges for the Service and the other services are exclusive of taxes, which, if it is applicable, will be added to Customer’s invoice.
5.3 If Customer disputes charges, Customer must notify Pro4ia, Inc. in writing of the dispute within thirty (30) days of the date on the affected bill, or else waive the dispute.
5.4 Customer will be responsible for reimbursing Pro4ia, Inc. for all costs (including reasonable attorney fees) associated with collecting delinquent or dishonored payments.
5.5 Customer requests to delete data or accounts must be provided in writing to Pro4ia, Inc. No requests for cancellation or deletion will be completed without written notice subject to Section 14.1 of this agreement.
6. Subject to Section 6.2, in the event that Customer or Pro4ia, Inc. is in breach of the Agreement and such a breach is not remedied within fourteen (14) days of receipt of written notice from Pro4ia, Inc. requiring such breach to be remedied, Pro4ia, Inc. or Customer (as the case may be) shall, without prejudice to its other rights, have the right to terminate the Agreement forthwith and without liability on its part in respect of such termination by written notice to Customer or Pro4ia, Inc. (as the case may be). Default in paying any sum due under the Agreement will be remedied only if the payment includes interest payable pursuant to Section 5.1.
6.1 Pro4ia, Inc. shall be entitled, without prejudice to its other rights, to terminate the Agreement forthwith and without liability on its part in respect of such termination by written notice to Customer if Customer is in breach of this agreement or Customer fails to pay any sum due under the Agreement within the period specified in the Agreement.
6.2 If Pro4ia, Inc. terminates the Agreement following a breach by the Customer of this Agreement or Customer fails to give sufficient notice of termination in accordance with Section 3.1, Customer will be liable to pay the Installation Charges, all cancellation and other contractual charges incurred by Pro4ia, Inc. relating to the provision of Services which have been ordered by Pro4ia, Inc. for the purpose of the provision of the Service. Customer will also pay Pro4ia, Inc. any Early Termination Penalties including, but not limited to, minimum monthly usage commitments multiplied by the remaining months in the Minimum Service Period.
6.3 Upon the termination of the Agreement, without prejudice to any other rights Pro4ia, Inc. may have, Customer shall:
6.3.1 within fifteen (15) days of the date of termination, deliver up to Pro4ia, Inc. and forthwith remove and/or destroy all components of the Service Provider Technology, any Confidential Information of Pro4ia, Inc. and any materials bearing Pro4ia, Inc.’s trade-marks from any storage media or hard copies remaining in Customer’s control or possession;
6.3.2 provide an officer’s certificate attesting to such delivery, erasure and/or destruction as is satisfactory to Pro4ia, Inc., acting reasonably;
6.3.3 remit all fees payable for services due prior to the date of such termination;
6.3.4 remit to Pro4ia, Inc. all such costs and fees owing to Pro4ia, Inc. including those related to the permanent or temporary winding down of any services provided by Pro4ia, Inc.
6.4 The provisions of this Terms & Conditions of Service will survive the termination of the Agreement and shall continue in full force and effect. Termination of the Agreement will not affect the rights of either party accrued prior to such termination in respect of a breach of the Agreement.
7. Customer acknowledges and agrees that all proprietary right, title and interest in and to the Service Provider Technology and the Service Provider Software, including all intellectual property rights therein, are owned by Pro4ia, Inc. or its licensors, respectively. Customer shall have no right to sublicense or modify any Service Provider Technology.
7.1 During the term of the Agreement Pro4ia, Inc. grants Customer a non-exclusive, non-transferable limited license to use the Software solely for the purpose of using the Service and for no other purpose.
7.2 Customer acknowledges that, pursuant to this Agreement, it is given a non-exclusive, nontransferable, royalty-free right to use, during the term of the End-User License Agreement, any Service Provider Software or Service Provider Technology incorporated solely for the purpose of using the Service and not for providing services to any third party. At no time and under no circumstances does Customer acquire an ownership interest in the Product, Service Provider Software or Service Provider Technology.
7.3 Customer further acknowledges and agrees that: (i) it is expressly prohibited from translating, adapting, modifying, decompiling, reverse engineering, creating derivative works from, disassembling, unlocking, copying or recreating any component of the Service Provider Software under the terms of this Agreement or the End-User License Agreement; (ii) Pro4ia, Inc. shall have all right, title, interest in and to all copies, derivative works, translations, adaptations or modifications of the Service Provider Technology or the Service Provider Software howsoever made by Customer; and (iii) any proceeds derived from the activities described above, whether or not made by Customer in compliance with this Agreement or the End-User License Agreement, shall accrue to Pro4ia, Inc..
8. The liability of Pro4ia, Inc. to Customer or Customer’s employees, agents, subcontractors, customers or any other person under or in connection with the Agreement shall be limited by the provisions of these terms and, in particular, Section 8.
8.1 Except for death or personal injury resulting from the negligence of Pro4ia, Inc. or its employees Pro4ia, Inc.’ total liability to the Customer under or in connection with the Agreement (including, without limitation, arising out of any delay in commencing the Service) shall be limited to the Monthly Charges for the time being payable for 12 months.
8.2 Notwithstanding any other provision of the Agreement, in no circumstance shall Pro4ia, Inc. be liable to Customer under or in connection with the Agreement or otherwise for:
8.2.1 any loss or corruption of data (whether temporary or permanent);
8.2.2 indirect, special, consequential or incidental damages, including, without limitation, loss of profits or revenue, loss of goodwill, business interruption, loss of anticipated savings, loss of data, cost of capital, however caused, even if such damages were foreseeable and the parties have been advised of the possibility of such damages; or
8.2.3 inability to restore data due to the loss of Customer’s encryption keys.
8.3 Except as expressly provided in this agreement, does Pro4ia, Inc. make any express or implied representations, warranties or conditions of any kind, including but not limited to implied or statutory warranties or conditions of merchantability or fitness for a particular purpose.
9. Customer shall indemnify Pro4ia, Inc. as required, on demand against any and all reasonable costs, expenses (including, without limitation, legal costs), liabilities, losses, damages, claims, demands and judgments which Pro4ia, Inc. incurs or suffers as a result of a breach of this Terms & Conditions of Service.
9.1 Under no circumstances will Pro4ia, Inc. be liable for data that was never sent to the data vault by Customer. Customer is advised to review backup sets to ensure that the desired files have been transmitted.
10. Pro4ia, Inc. does not make any independent representations or warranties with products provided by third parties. Any third party warranties are the exclusive remedies of Customer with respect to such products.
11. Each party agrees to, 1. keep confidential all the other party’s Confidential Information (whether written or oral) which it has obtained or received as a result of the discussions leading up to or the entering into, or obtains or receives in performance or during the term of, the Agreement; 2. not to disclose the other party’s Confidential Information in whole or in part to any third party without the disclosing party’s written consent, save to those of its employees, agents and contractors involved in the implementation of this Agreement and who have a need to know the same and are bound to keep if confidential;
12. The failure by either party to exercise any right conferred by the Agreement shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement of any such right on any later occasion.
13. Additionally, Customer acknowledges that Pro4ia, Inc. shall be permitted to assign the Agreement to any successor in title or other entity into, by or with which the business or assets of Pro4ia, Inc. to which the Agreement relates may be merged, acquired, consolidated or reorganized, or any entity which may purchase all or substantially all of such business or assets. The Agreement shall be binding upon and shall endure to the benefit of the parties hereto and their respective successors and permitted assigns.
14. Customer shall send Pro4ia, Inc. written notice or other documents required by or in connection with the Agreement to the Pro4ia, Inc. address listed on the Pro4ia, Inc. invoice.
15. Pro4ia, Inc. shall not be liable for any breach of the Agreement caused by matters beyond Pro4ia, Inc.’s reasonable control, including, without limitation, Acts of God, fire, lightning, explosion, war, disorder, flood, industrial disputes (whether or not involving Pro4ia, Inc.’ employees), weather of exceptional severity or acts of local or central Government or other authorities or regulatory bodies.
16. State law issues concerning the construction, interpretation and performance of these terms and conditions shall be governed by the substantive laws of the State of New York and Massachusetts, excluding its choice of law rules. The U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. 

Terms and Conditions Definitions and Interpretations: 
 
In all Pro4ia, Inc. Service Agreements pertaining to Cloud Services the following definitions shall have the following meanings:

“Agreement” means this Agreement, including its Exhibits.

“Assisted Installation” refers to an installation in which Pro4ia is involved on the Customer behalf to complete a software installation for an end-user.

“Assisted Support” refers to assistance provided by Pro4ia to provide customer service/support to the Customers end-user.

“Business Day” means any day other than a Saturday, Sunday or a Bank Holiday in Massachusetts.

“Cancellation” is defined as written notification to Pro4ia, via certified U.S. Postal Mail, at 55 Broad St. - 18th Floor, New York, NY 10004, attention: Account Cancellation.

“Commencement Date” is defined as the date in which the Service is installed and available for use by Customer.

“Commitment” refers to the minimum storage that the Customer must maintain on the Pro4ia data vault on a monthly basis. If Customer has not met the commitment number then Pro4ia will invoice the Customer for the Commitment amount.

“Confidential Information” means all information not publicly known, used in or otherwise relating to a party’s business, customers or financial or other affairs, including, without limitation, information relating to (a) the marketing of goods or services including, without limitation, existing and future customer names and lists and other details of existing and future customers, (b) future products, business development or planning, commercial relationships and negotiations; (c) information relating to the Service and the Pro4ia Technology; (d) information received from third parties that a party is obligated to treat as confidential; (e) all information which is marked as confidential or proprietary, whether such information is disclosed orally, in writing or otherwise before or after the Effective Date; and (f) this Agreement.

“Customer” means the Customer as defined in the Agreement and shall include, but is not limited to the terms; Customer, Partner or Wholesale Partner.

“Customer Telephone Support” refers to the customer service phone support which Pro4ia provides to the Customer.

“Early Termination Penalty” means the Customer has terminated their service prior to the Minimum Service Period and is responsible for payment for the remaining months in the Minimum Service Period. (Example: Twelve month agreement with a Effective date of January. Customer cancels in the month October. There are two months remaining in the Minimum Service Period.  Two months remaining multiplied by the minimum monthly commitment).

“Effective Date” means the date this Agreement takes legal effect, being the date on this first page of Pro4ia Order Form.

“Emergency Truckroll Restoration Service” refers to a Pro4ia service in which Pro4ia will provide the Customer with end-user data on a specific media format (CD, DVD or USB).

“Equipment” means the computer equipment (if any), racking (if any) and associated equipment (if any) used in connection with the provision of the Service and located on Customer’s premises for the time being.

“End-User License Agreement” means the Clickwrap license agreement between Customer and Pro4ia which the Customer must execute in order to install and license the Software and utilize the Pro4ia Service.

“GST” means goods and services tax.

“Installation Charges or Installation Fees” means the set up charges for establishing the Service.

“Laws” means all statutes, codes, ordinances, decrees, rules, regulations, municipal-by-laws, orders, decisions, rulings or awards, policies, voluntary restraints, guidelines, or any provisions of the foregoing, including general principles of common and civil law and equity, binding on or affecting the party referred to in the context of which such word is used and “Law” means any one of the foregoing.

“Max Native” Storage value defined as the native size of the largest single backup set that was backed up during the billing period and with a maximum of 7 copies on line. In cases where Customer stores multiple backup sets, volume quota will be based on the sum of the largest backup per set.

“Minimum Service Period” also referred to as the MSP, the Minimum Service Period is the Customer commitment from the Effective Date to completion of the Service agreement length (Example: Customer signs for a 12 month Minimum Service Period beginning in January. The Minimum Service Period will expire at the end of December).

“Monthly Charges” means the Monthly Data Charge, the Monthly Storage Usage Charge, Monthly Fees associated with the Service and any applicable monthly fees associated with the Service.

“Monthly Data Charge or Monthly Backup Fees” means the monthly charge for the time being for data backup and storage specified in and varied in accordance with the Additional Service Descriptions and Charges section in Exhibit A.

“Payment Status” means that customer payment history is categorized into 5 payment levels; Current, (Current Payment Status is defined as ‘payment due within 10 calendar days from completion of a monthly billing cycle’), Past due, 45 days past due, 60 days past due, 90 days past due and 120 days past due. Varying degrees of penalties are applied depending on the level of past due payment status.

“Protected” Storage value defined as the native size of the data being backed up to the vault. So for example, if backing up 4GB of data, the Protected Storage value would be 4GB. This includes the value of changed blocks that are backed up during incremental generations, and deleted files that still exist from previous generations.

“Ramp-up Period” refers to the timeframe in which the Customer has to reach the full Commitment.

“Service” means the Pro4ia service as described in this Agreement and Schedules, and including, without limitation the provision of people, infrastructure resources, support and access to and the use of Pro4ia software (including, without limitation, the Software), applications, hardware (including without limitation the Equipment), data center resources and interconnection to other third party networks and any other services provided by Pro4ia in connection with the backup, storage, and recovery of Customer data.

“Service Period” means the Customer commitment after the completion of the Minimum Service Period. (Example: Customer signs for a 12 month commitment beginning in January 1, 2010. The Minimum Service Period will end on December 31, 2010. The new Minimum Service Period will begin on January 1, 2011.)

“Software” means all and any software installed for purposes of the Service.

“Stored” Storage value after both compression and de-duplication. So for example, if backing up 4GB of word documents, the stored de-duped amount could be 2GB (or less), representing a 2:1 (or better) compression/de-duplication ratio.

“TotalSupport” refers to the screensharing tool which Pro4ia makes available to Customers and also uses to for remote diagnostics and support for installation and customer assistance.

“USB Data Return” is when Pro4ia provides the Customer with end-user data on a USB device.

“Pro4ia” means Pro4ia, Inc., the Service Provider.

“Pro4ia Technology” means any concepts, inventions, systems, processes, techniques, trade-secrets, trade-marks, patents, copyrights, methodologies, know-how, data, tools, templates, technology (including software in executable code and source code), documentation or any other information, data or materials, and any expressions of the foregoing, independently developed by and owned by Pro4ia prior to the provision of the Services under the Agreement or created at the request of Customer as customizations under the Agreement or any other agreement.

“Web Portal” refers to the Pro4ia tool in which a Customer can review storage usage, backup status, System Activity Logs, etc for all end-users.