Web Hosting Agreement

This agreement between Evergraph Professional Hosting (Evergraph) and ________________________ is for web hosting services for a period of one year. Evergraph agrees to provide web hosting services from date of account creation, based on the hosting package chosen below. The specific details of the package being provided are outlined in the Evergraph Professional Hosting Control Panel and on our website at http://hosting.evergraph.com/plans.

Choose Hosting plan
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Evergraph SiteMicro $ 10.00/month
Evergraph SiteLite $ 15.00/month
Evergraph SitePro $ 20.00/month
Evergraph Custom Hosting Priced per custom requirements. 

Setup fee is $35.00 for all new clients. Setup is waived for annual prepay clients.

Funds are accepted in US currency only and must be received prior to account setup. If paying by check, please make checks payable to Evergraph, 6317 W. 147th Street, Overland Park, KS 66223. If paying by credit card, please call 913-449-8795 to quickly set up your account with an account manager.

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Web Hosting Policy
This Web Hosting Agreement (this "Agreement") sets forth the terms and conditions of your use of Evergraph Professional Hosting (Evergraph) for web hosting services. You certify that you are at least 18 years of age. To become an Evergraph Professional Hosting accountholder, you must read and agree to be bound by all terms and conditions of this Agreement, the fee schedules outlined above and any policies that are or may be published by Evergraph Professional Hosting. This Agreement will become effective when accepted by Evergraph Professional Hosting. Evergraph Professional Hosting may modify the terms and conditions of this Agreement or the prices of its services, as well as discontinue or change the services offered. You will be bound by the modified Agreement, prices and/or policies if you continue to use the services.

1. Scope of Services and Your Obligations
1.1 This Agreement defines the terms and conditions of Evergraph Professional Hosting‘s services as offered by Evergraph Professional Hosting and used by you, including the provision of web hosting services on Evergraph Professional Hosting dedicated servers and connectivity to the Internet (the "Services"). Evergraph Professional Hosting will provide the Services for the amount of server storage space selected in exchange for payment of fees and full compliance with the terms and conditions of this Agreement. In performing the Services, Evergraph Professional Hosting maintains control and ownership of any and all Internet protocol ("IP") numbers and addresses that may be assigned to you and reserves the right to change or remove any and all IP numbers and addresses at its sole discretion.
 
1.2. As part of the Services, Evergraph Professional Hosting will also provide your own web-based customer interface (the "Control Panel") containing links to your hosting account features and functions, summaries of the Services you have chosen, and online documentation that includes all applicable instruction that you will need in order to properly use this Service. YOU AGREE TO LOG IN TO YOUR CONTROL PANEL AT LEAST ONCE EVERY 60 DAYS TO ENSURE THAT YOUR EMAIL ADDRESS AND CONTACT INFORMATION ARE UP TO DATE. Your Control Panel permits access to your website for uploading and modifying the contents. You will provide a unique password for authentication each time you access your Control Panel. You and Evergraph Professional Hosting will keep such password confidential.
 
1.3 You are responsible for producing, electronically uploading and maintaining HTML files, execution scripts, applets and applications (the "Upload Materials") to your website and you hereby warrant that all Upload Materials shall be owned or properly licensed by you and shall not adversely impact the Services or violate any rights of any third parties. You are responsible for ensuring that all Upload Materials will function properly and as intended. You are responsible for all activity originating from your website, unless proven to be a victim of outside hacking or address forgery. You assume responsibility for all material on your website that may be put on by a third party. Use of the Services requires a certain level of knowledge in the use of Internet languages, protocols, and software, which can vary depending on your anticipated use and desired content of your website, and includes, but is not limited to, the following: web publishing requires knowledge of HTML, properly locating and linking documents, FTPing web contents, graphics, text, sound, image mapping, etc.; FrontPage web publishing requires knowledge of the FrontPage tools as well as Telnet and FTP understanding and capability; CGI-scripts requires knowledge of the UNIX environment, tar & gunzip commands, Perl, CShell scripts, permissions, etc.; and mail requires knowledge of use of mail clients to receive and send mail, etc. You acknowledge that you have the necessary knowledge, or have assigned such responsibilities to a qualified third-party to create, modify and maintain your website. Evergraph Professional Hosting assumes no responsibility to provide you with such knowledge.
 
1.4 In connection with the Services, Evergraph Professional Hosting may provide for your use certain tools and software, including, but not limited to, certain specialty scripting software and/or certain programming language software for designing websites (collectively, the "Tools"). Access to these Tools may be via your Control Panel. To the extent that such Tools are provided to you, you are granted a nonexclusive, nontransferable license to use the Tools in object-code form only for your internal use, solely in connection with the Services provided under this Agreement.
 
1.5 During the period that Evergraph Professional Hosting provides Services to you, you hereby grant to Evergraph Professional Hosting a nonexclusive, royalty-free, worldwide right and license to digitally display and host your website and its content, and to use its trademarks, service marks, trade names, logos and other commercial or product/service designations in connection with the website and such Services.
 
1.6 Evergraph Professional Hosting reserves the right to monitor its systems electronically and to access and disclose any information as permitted or required by any law, regulation or other governmental request to operate its systems properly, to protect itself or its accountholders or for any other reason it in good faith deems necessary. Evergraph Professional Hosting will fully cooperate with law enforcement authorities in investigating suspected lawbreakers and reserves the right to report to law enforcement any suspected illegal activity it becomes aware of. It is not Evergraph Professional Hosting 's intention that its Services or facilities be used in contravention of the Communications Decency Act of 1996 (the "CDA") or any other applicable law.
 
1.7 You agree to comply with the requirements of the CDA and the Digital Millennium Copyright Act (the "DMCA") and acknowledge that Evergraph Professional Hosting is a "service provider" under the DMCA and is therefore immune from liability under the DMCA, including 17 U.S.C. § 512. Consistent with the DMCA, Evergraph Professional Hosting will accommodate standard technical measures used to identify and protect copyrighted works, and, as further described herein, Evergraph Professional Hosting has a policy of terminating accountholders who are repeat copyright infringers.
 
1.8 Websites are unmodified forums containing the personal opinions and other expressions of the persons who post entries on a wide range of topics. Neither the content of websites located on Evergraph Professional Hosting servers nor the links to other websites are screened, approved, reviewed or endorsed by Evergraph Professional Hosting. Evergraph Professional Hosting is not a publisher of any of the content of websites, or of any content that may be available through the links to and from them, and is acting solely as an Internet web-hosting service provider. The text and other material on such websites are the opinion of the specific author and are not Evergraph Professional Hosting 's statements of advice, opinion or information.

2. Limited Warranty; Limitation of Liability; Indemnification Limited Warranty
 
2.1 You acknowledge that the Services are provided "as is." Neither Evergraph Professional Hosting, nor any of its employees or agents, warrants that the Services will be uninterrupted, error free or free from viruses or other harmful components. Evergraph Professional Hosting is not responsible for and hereby disclaims any warranties, either expressed or implied, regarding the quality, accuracy, or validity of the data and/or completeness, non-infringement, merchantability or fitness for a particular purpose of information available on its SERVERS or residing on or passing through its interconnecting networks. Use of information obtained from or through the Services is at your risk. Under no circumstances will Evergraph Professional Hosting be liable to you or any other person for any loss or damage caused by your reliance on information available on its servers or obtained through the Services.
 
2.2 Limitation of Liability. IN NO EVENT SHALL EVERGRAPH PROFESSIONAL HOSTING BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR OTHER CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS AND DAMAGES RELATED TO CORRUPTION OR DELETION OF WEBSITE CONTENTS) ARISING OUT OF OR IN RELATION TO THIS AGREEMENT OR YOUR USE OR INABILITY TO USE EVERGRAPH PROFESSIONAL HOSTING’S SERVICES (INCLUDING, BUT NOT LIMITED TO, INOPERABILITY OF EVERGRAPH PROFESSIONAL HOSTING’S SERVERS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF EVERGRAPH PROFESSIONAL HOSTING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EVERGRAPH PROFESSIONAL HOSTING’S MAXIMUM LIABILITY EXCEED THE TOTAL AMOUNT PAID BY YOU TO EVERGRAPH PROFESSIONAL HOSTING FOR THE SERVICES DURING THE PRIOR TWELVE (12) MONTHS. TO THE EXTENT APPLICABLE STATE LAW DOES NOT ALLOW THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, EVERGRAPH PROFESSIONAL HOSTING’S LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.
 
2.3 Indemnification. You agree to indemnify, defend and hold Evergraph Professional Hosting and its affiliates, directors, officers, owners, employees and agents harmless from and against any liabilities, losses, damages or costs, including reasonable attorneys' fees, resulting from any third-party claim, action, dispute or demand related to your use of the Services, your violation of any of the provisions of this Agreement or from your placement or transmission of any materials or content onto Evergraph Professional Hosting servers. Such liabilities may include, but are not limited to, those arising from the following: (a) with respect to your business, (i) infringement or misappropriation of any intellectual property rights; (ii) defamation, libel, slander, obscenity, pornography, racism, endangerment of children or persons who are unable to adequately defend themselves or violation of the rights of privacy or publicity; or (iii) spamming, or any other offensive, harassing or illegal conduct or violation of the acceptable uses described herein or anti-spam policy; (b) any damage or destruction to Evergraph Professional Hosting equipment or to any other accountholder, which damage is caused by or otherwise results from acts or omissions by you, your representative(s) or your designees; (c) any personal injury or property damage arising out of your activities related to the Services, unless such injury or property damage is caused solely by Evergraph Professional Hosting gross negligence or willful misconduct; and (d) any other damage arising from your equipment or your business.

3. Payment of Fees
 
3.1 Evergraph Professional Hosting will send an email notice of fee increases 30 days before such increases take effect.
 
3.2 You agree to provide Evergraph Professional Hosting with accurate and complete billing information, including your legal name, address, telephone number, e-mail address and to update this information immediately if any change occurs. Payments must be submitted in advance of receiving the Services.
 
3.3 If you secure your account with a credit card, you acknowledge that Evergraph Professional Hosting will bill your credit card prior to the Payment Interval you have chosen. You authorize automatic billing by Evergraph Professional Hosting on an ongoing basis during the term of this Agreement.
 
3.4 Delinquent accounts are those that remain unpaid at the beginning of the next Payment Interval. The Services will be suspended if your account is delinquent for 14 days. Notwithstanding any other rights Evergraph Professional Hosting may have in this Agreement, all of your website contents will be destroyed if your account is delinquent for 21 days. Evergraph Professional Hosting accounts continue to accrue charges while they are delinquent or if the Services are suspended.
 
3.5 You acknowledge responsibility for your account until payment in full is made.

4. Evergraph Professional Hosting’s Right to Terminate Agreement
 
(a) Evergraph Professional Hosting reserves the right to suspend or terminate the Services to you and remove or prevent access to any material from your website at any time, without prior notice or liability, for any conduct that Evergraph Professional Hosting, in its sole discretion, believes violates this Agreement or is otherwise harmful to Evergraph Professional Hosting interests or the interests of other accountholders.
 
(b) Evergraph Professional Hosting also reserves the right to comply with the takedown provisions of the DMCA and to seek injunctive, declaratory, interpleader or other judicial or equitable relief (and, pending such action, to suspend all access to your website) if any third-party claim is made that your website content or use violates any of the acceptable uses or your obligations or representations described in this Agreement.

5. Cancellation of Accounts
 
5.1 You may cancel your Evergraph Professional Hosting account by sending a cancellation request to support@hosting.evergraph.com. Charges for canceling accounts are not prorated on a monthly basis.
 
5.2 All Evergraph Professional Hosting accounts must be paid in full before the cancellation will be considered complete.
 
5.3 If your account is suspended or terminated for any reason permitted by this Agreement, Evergraph Professional Hosting may, at its sole discretion, permanently delete your website contents from Evergraph Professional Hosting servers, and Evergraph Professional Hosting will not be able to reopen or restore such content.

6. Arbitration; Governing Law
 
6.1 Except for Evergraph Professional Hosting 's compliance with takedown provisions of the DMCA or injunctive or other equitable actions initiated by Evergraph Professional Hosting pursuant to Section 4(b), if any controversy or dispute arises in connection with this Agreement, the Services or your use of Evergraph Professional Hosting servers, such controversy or dispute shall first be presented for resolution by Evergraph Professional Hosting and you. If no resolution is reached within 7 days thereafter, then such controversy or dispute shall be resolved by binding arbitration in Overland Park, Kansas, under the then-current rules of commercial arbitration of the American Arbitration Association. Each party shall select an arbitrator with expertise in computer law and the Internet, and these two arbitrators shall select the third arbitrator with such expertise. The validity, terms, performance and enforcement of this Agreement shall be governed and construed by its provisions and in accordance with the laws of the State of Kansas (without regard to conflicts of laws principles).
 
6.2 You hereby irrevocably and unconditionally consent to submit to the exclusive jurisdiction of the state and federal courts located in Overland Park, Kansas, for any action, suit or proceeding arising out of or relating to Section 4(b) of this Agreement and the arbitration contemplated by this Section 6.

7. Miscellaneous
 
You may not assign your rights and obligations under this Agreement without the prior written consent of Evergraph Professional Hosting, which may be withheld at Evergraph Professional Hosting’s discretion. Nothing contained in this Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties.

The failure of Evergraph Professional Hosting to require your performance of any provision hereof shall not affect the right to require such performance thereafter; nor shall the waiver by Evergraph Professional Hosting of a breach of any provision hereof be taken or held to be a waiver of the provision itself. Any action for any claim arising under, or in connection with, this Agreement must be commenced by you within one year after the alleged cause of action has accrued or after the date of termination of this Agreement, whichever is earlier.

In the event that any provision of this Agreement is deemed unenforceable or invalid, such unenforceability or invalidity shall not affect the remainder of this Agreement.

Such provision may be amended or replaced with one that is valid and enforceable and which achieves, to the extent possible, the original objectives and intent of the parties as reflected in the original provision. No provision of this Agreement may be amended or modified by you except by means of a written document signed or expressly assented to by Evergraph Professional Hosting. All terms and conditions of this Agreement that should by their nature survive termination of this Agreement shall so survive. This Agreement and the Online Order form, together with all amendments or modifications to any of them, constitute the complete and exclusive agreement between you and Evergraph Professional Hosting and supersede and govern all prior proposals, agreements, or other communications.

8. Acceptable Uses
 
8.1 Use and Misuse of the Services. All complaints of abuse, violation and misuse of the Services, whether described in this Section 4 or otherwise, shall be investigated promptly. If you are not sure if your actions will be an abuse, violation or misuse, please ask first: support@hosting.evergraph.com. You are responsible for all use of your website, with or without your knowledge or consent. You agree to use the Services only for lawful purposes, in compliance with all applicable laws. Illegality includes, but is not limited to, drug dealing; attempting without authorization to access a computer system; pirating (distributing copyrighted material in violation of copyright law, specifically MP3s, MPEGs, ROMs, and ROM emulators); gambling; schemes to defraud; trafficking in obscene material; sending a message or having content that is obscene, lewd, lascivious, filthy, or indecent with intent to annoy, abuse, threaten, or harass another person; threatening bodily harm or damage to individuals or groups; violating U.S. export restrictions; stalking; or violating other state or federal law, such as the Electronic Communications Privacy Act, the Computer Fraud and Abuse Act, or the Economic Espionage Act. Linking to illegal material is also prohibited. When Evergraph Professional Hosting becomes aware of possible violations of this Agreement, Evergraph Professional Hosting may initiate an investigation that may include gathering information from you and the complaining party, if any, and examination of material on Evergraph Professional Hosting servers. Evergraph Professional Hosting, in its sole discretion, will determine what action will be taken in response to a violation on a case-by-case basis. Violations of this Agreement could subject you to criminal or civil liability. BY ACCEPTING THIS AGREEMENT, YOU AGREE TO WAIVE AND HOLD EVERGRAPH PROFESSIONAL HOSTING HARMLESS FROM ANY CLAIMS RELATING TO ANY ACTION TAKEN BY EVERGRAPH PROFESSIONAL HOSTING AS PART OF ITS INVESTIGATION OF A SUSPECTED VIOLATION OF THIS AGREEMENT OR AS A RESULT OF ITS CONCLUSION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED. THIS MEANS THAT YOU CANNOT SUE OR RECOVER ANY DAMAGES WHATSOEVER FROM EVERGRAPH PROFESSIONAL HOSTING OR ITS OWNERS, INVESTORS, OFFICERS OR ASSOCIATES AS A RESULT OF EVERGRAPH PROFESSIONAL HOSTING’S DECISION TO REMOVE MATERIAL FROM ITS SERVERS, WARN YOU, SUSPEND OR TERMINATE YOUR ACCOUNT, OR TAKE ANY OTHER ACTION DURING THE INVESTIGATION OF A SUSPECTED VIOLATION OR AS A RESULT OF EVERGRAPH PROFESSIONAL HOSTING'S CONCLUSION THAT A VIOLATION HAS OCCURRED. THIS WAIVER APPLIES TO ALL VIOLATIONS DESCRIBED IN THIS AGREEMENT.
 
8.2 Use and Misuse of Materials. Materials in the public domain (e.g., images, text, and programs) may be downloaded or uploaded using the Services. You may also redistribute materials in the public domain. You assume all risks regarding the determination of whether the material is in the public domain. You are prohibited from storing, distributing, linking to or transmitting any unlawful material through the Services. Examples of unlawful material include, but are not limited to, threats of physical harm, child pornography, and copyrighted, trademarked and other proprietary material used without proper authorization. Pornography and sex-related merchandising, or links to such material, even if legal, are not acceptable uses of Evergraph Professional Hosting’s servers. You may not post, upload or otherwise distribute copyrighted material on Evergraph Professional Hosting servers without the consent of the copyright holder. Unacceptable uses of website content also include the presence of the following programs or the activities associated with them, regardless of whether or not any actual intrusion results in the corruption or loss of data: server broadcast messages or any message sent on an intrusive basis to any directly or indirectly attached network; attempts to circumvent any user authentication or security of host, network, or account; accessing data not intended for user; probing the security of any network; spawning dozens of processes; port scans, ping floods, packet spoofing, and forging router information; denial of service attacks, sniffers, flooding, spoofing, ping bombing, smurfs, winnuke, land and teardrop; promulgation of viruses; and IRC bots, such as eggdrop or BitchX. Evergraph Professional Hosting supports free speech on the Internet and will not suspend or cancel your account simply because it disagrees with your views expressed at your website. However, examples of unacceptable activities include posting private information about a person without his or her consent, defaming a person or business, and knowingly making available code that will have a deleterious effect on third-party computers. Where there are allegations that your on-line activity has violated the legal rights of a third party, Evergraph Professional Hosting will not substitute itself for a court of law in deciding tort claims raised by the third party.
 
8.3 Email Use. Unacceptable affronts to netiquette and unacceptable activities include, but are not limited to, the following: spamming (sending unsolicited advertising to those with which you have no existing business relationship and posting off-topic advertising in newsgroups); spoofing (using a return email address that is not the valid reply address of the sender or sending an email message that does not contain enough information to enable the recipient to identify you); passive spamming (promoting a website hosted by Evergraph Professional Hosting by spamming from some other source); trolling (posting controversial messages in newsgroups to generate responses); mail bombing (inundating a user with email without any serious intent to correspond or sending large or multiple files to a user); generating a higher volume of outgoing mail than a normal user (over 10% of available system resources); propagating chain letters; and subscribing someone else to an electronic mailing list without that person's permission. A message is considered unsolicited if it is posted in violation of a newsgroup charter or sent to a recipient who has not requested the message. Making an email address available to the public does not constitute a request to receive messages. Distribution of mass EMAIL programs is also prohibited. All recipients on a mailing list must have personally subscribed. Mailing lists may not be used to distribute unsolicited email. If you are repeatedly mail bombed or attract such behavior, the Services will be terminated. You should not send email to any user who does not wish to receive it, either at Evergraph Professional Hosting or elsewhere. Evergraph Professional Hosting recognizes that email is an informal medium; however, you must refrain from sending further email to a user after receiving a request to stop. You may not alter the headers of email messages to disguise their identity or to prevent users from responding to the messages. Evergraph Professional Hosting may disclose the usernames of accounts responsible for forged email messages to system administrators or users requesting the information. Violations of the Evergraph Professional Hosting policies outlined herein can sometimes result in massive numbers of email responses. If you receive so much email that Evergraph Professional Hosting resources are affected, Evergraph Professional Hosting staff may shut down your mailbox.
 
8.4 System Security. You are prohibited from utilizing the Services to compromise the security of system resources or accounts on servers at Evergraph Professional Hosting or at any other site. Use or distribution of tools designed for compromising security or containing viruses or Trojans are prohibited. Examples of these tools include, but are not limited to, password guessing programs, cracking tools or network probing tools. If you are involved in violations of system security, reserves the right to release all usernames of users involved in such violations to system administrators at other sites in order to assist them in resolving security incidents. Evergraph Professional Hosting will also fully cooperate with law enforcement authorities in investigating suspected lawbreakers.
 
8.5 System Resources. System abuse includes any use of Evergraph Professional Hosting resources that disrupts the normal use of its servers or services for others. Examples of system abuse include running excessive numbers of processes or consuming excessive amounts of CPU time, memory or disk space. Any usage of 10% or more of Evergraph Professional Hosting system resources is an undue burden on Evergraph Professional Hosting system and is unacceptable. If your usage ever exceeds 10% of system resources, your account may be terminated immediately and without prior notice. Usage of scripts or other utilities to direct pointed domain names to subdirectories is not permitted and is grounds for termination. Further, running programs in the background on a Evergraph Professional Hosting server without Evergraph Professional Hosting prior written authorization, or running chat rooms, Internet Relay Chat, IRC bots, mailing lists that send more then 1,000 emails a day and the like are not acceptable uses of Evergraph Professional Hosting 's servers.

(c) 2004 Evergraph Marketing Services