Xensys Terms of Service for IT Services

1. Xensys Corporation Customers to purchase and use IT Solutions and Software as a Service services and NOT IT or Progress Consulting Services.

By initiating a service order with Xensys Corporation you are promising:

1. If you are a Xensys Corporation Customer, that you have read, understand and agree for yourself and your users of the services to be bound by the terms, conditions, and policies set forth herein.

Definitions

In this Terms of Service the following terms will be used and have the subsequent definitions assigned to them:

Control Panel: a website and application programming interface (API) that allows customers to manage their account settings online.

Customer(s): purchaser(s) of IT Solutions Services or IT Consulting Services directly from Xensys Corporation.

Data Backups: a storage system that stores a secondary copy of most customer data for the purpose of recovering emails and other data that may become lost or damaged due to User errors or system failure.

Effective Date: the date an order for IT Solutions Services or IT Consulting Services is submitted to Xensys Corporation by a customer and payment has been received for the first month's services.

IT Solutions Services: the capability acquired from Xensys Corporation to send and receive email through the Internet, via SMTP, POP3, IMAP4, and HTTP protocols.

Initial Period: the period commencing on the Effective Date and continuing for the amount of time selected by the customer during the ordering process.

Junk Email: spam, viruses, phishing scams, and other disruptive content.

Renewal Period: each period equal and subsequent to the Initial Period for which this Agreement shall be automatically renewed on these Terms of Service unless and until this Agreement is terminated as provided herein.

Software as a Service (SaaS): A software delivery model where the customer does not pay for owning the software, but does pay for using it over the Internet.

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Uptime Guarantee: guarantee by Xensys Corporation that the IT Solutions Services will be available 99.99% of the time during any calendar month, subject to and in accordance with the further provisions of this Agreement.

User(s): user(s) of IT Solutions and Software as a Service Services.

Xensys Corporation Network: the network infrastructure, hardware and software used to provide services.

Xensys Corporation: the company providing services pursuant to this Agreement.

Xensys Corporation may modify this Agreement at any time. Customers can reference

http://www.xensys.net/index.php?location=termsofservice

for the most current version of this Agreement. Xensys Corporation will provide the date for the most recent modifications on the website. Material changes, as determined by Xensys Corporation, will be given to customers using any of the contact methods provided by the customers. The customer's continued exercise of the rights provided by this Agreement, for five business days after notice of the modification is given (or after 90 days after notice is given in the case of modifications in pricing) will constitute an affirmative acknowledgement by the customer that the customer has read, understands, and agrees with such modification at which time the modification shall be considered part of this Agreement.

Period of Performance

This Agreement shall become effective as to each Customer on the Effective Date. The Period of performance of this Agreement will commence on the Effective Date and will continue for the Initial Period. Thereafter, this Agreement will automatically renew for successive Renewal Periods unless and until this Agreement is terminated as herein provided.

Term and Payments

The amount of payments shall be determined according to the pricing schedule in effect on the Effective Date. These fees will remain in effect unless modified by Xensys Corporation in accordance with this Agreement. The customer's first payment shall be due on or before the Effective Date and remaining payments will be due and payable to Xensys Corporation in accordance with the selected payment plan, and will be automatically debited from such customer's credit card prior to that date, or paid in currently available funds, unless other payment arrangements are made with Xensys Corporation. Unless terminated in accordance with the other provisions of this Agreement prior to the expiration of the Initial Period or any Renewal Period this Agreement shall be automatically renewed for the same term and on the same payment plan as in effect for the immediately preceding term with the first payment hereunder due on or before the first day of the Renewal Period. Any payments not made when due will be subject to an interest charge of 2.5% per month, unless such rate of interest is not permitted by applicable law in which case, the interest charge will be the highest interest permitted by applicable law. If any required payment is not paid in full by customer when due, Xensys Corporation may, in its sole discretion, disable customer ccess to services until payment is received or this Agreement is terminated. Xensys Corporation reserves the right, in its sole discretion, to obtain a credit report on customers at any time and from time to time.

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Taxes

Customers shall be responsible for the payment of all taxes associated with this Agreement or its use or. If Xensys Corporation is required to pay any such taxes directly, customers shall, upon receipt of the Xensys Corporation invoice, reimburse Xensys Corporation for any amount that Xensys Corporation has paid.

Right to Set-off

Xensys Corporation may, without limiting or waiving any other right or remedy against customers, set off against and apply to any amounts, which are due, and owing to Xensys Corporation by customers all amounts due and owing by Xensys Corporation to customers until all amounts owing to Xensys Corporation have been paid.

Effect of Termination and Non-Renewal

In the event that this Agreement is terminated or the customer elects not to renew services with Xensys Corporation, Xensys Corporation will work to ensure a smooth transition for the customer and the customer's data. Customer data is maintained on the Xensys Corporation Network for 10 days. The customer must request an export of their data within 10 days of notifying Xensys Corporation of the termination or non-renewal. Xensys Corporation will use commercially reasonable efforts to make the data available to Customer within 14 days of the request. Payment for any obligation owed by the customer to Xensys Corporation must be rendered prior to the transfer of the customer's data export to the customer.

Termination

Either Xensys Corporation or the customer, who is not in material breach of this Agreement, may terminate this Agreement by giving the other party at least 30 days prior written notice specifying the date of termination. A customer who terminates pursuant to the immediately preceding sentence shall be eligible for a refund of any prepaid fees applicable to a period (measured in full months) after the effective date of such termination.

Exceptions to the thirty-day notice requirement include:

1. Xensys Corporation may terminate this Agreement with immediate effect if the customer violates provisions of Customer's Responsibilities or violates (or causes a violation of) Xensys Corporation's Acceptable Use Policy or breaches (or causes a breach of) the customer's confidentiality obligations.
2. The customer shall be deemed to have automatically terminated this Agreement if the customer fails to accept any proposed modification by Xensys Corporation.
3. In the case of services, the customer may terminate this Agreement if Xensys Corporation fails to comply with the Uptime Guarantee according to the provisions provided therein.

In the event Xensys Corporation terminates this Agreement on account of a material breach, the customer shall not be entitled to a refund of any amounts previously paid. Notwithstanding any termination or nonrenewal, this Agreement shall remain in effect only to the extent that, and only for as long as, it is necessary to provide the parties with the ability to enforce the rights and remedies that are intended to survive termination or nonrenewal.

Either party shall have the right to terminate this Agreement in the event either party (a) terminates or suspends its business, (b) becomes subject to any bankruptcy or insolvency proceeding under Federal or state statute, (c) becomes insolvent or becomes subject to direct control by a trustee, receiver or similar authority, or (d) has wound up or liquidated, voluntarily or otherwise.

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Privacy Policy

Xensys Corporation will adhere to the Xensys Corporation Privacy Policy set forth at

http://www.xensys.net/index.php?location=privacypolicy

and incorporated herein by reference with respect to the collection and use of the customer's personal information by Xensys Corporation.

Rights

Notwithstanding anything to the contrary stated herein, Xensys Corporation maintains all rights, title, and interest in the all of its services and all software applications underlying such services and consulting services excluding any software applications acquired through commercial vendors or the open-source community. The customer may only use Xensys Corporation's services or for internal business purposes and may not use such services in a resale capacity or allow or share access to such services.

Xensys Corporation reserves all rights to use its services and consulting services in whatever manner it chooses, including provision of identical or similar services to other Xensys Corporation customers. Nothing herein shall be deemed to restrict such rights.

Warranties

Xensys Corporation makes no promises or warranties that are not expressly provided in the other terms of this Agreement. In addition, Xensys Corporation does not warrant (a) that the functions contained in the Xensys Corporation services or consulting services provided will meet Customer's requirements or (b) that the operation of the Xensys Corporation services will be uninterrupted, accurate or error free.

EXCLUSION. THE WARRANTIES AND GUARANTEES EXPRESSLY PROVIDED IN THIS AGREEMENT ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, GUARANTEES AND CONDITIONS, EXPRESSED, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT AND NONINFRINGEMENT.

Indemnification

In the event that any suit is brought based on a claim that the services or consulting services delivered by Xensys Corporation infringe any copyright, trade secret, patent or other property right of any third party, the exclusive remedy against and the only obligation of Xensys Corporation shall be for Xensys Corporation, at its sole option, (i) to defend the customer against, and if determined appropriate in sole and exclusive judgment of Xensys Corporation, settle a claim of infringement, all at the expense of Xensys Corporation, or (ii) to procure the right of the customer to continue to use the Xensys Corporation services and consulting services at issue, or (iii) to replace or modify the infringing portion of the Xensys Corporation services and consulting services at issue so that it becomes noninfringing or (iv) terminate the customer's use of the Xensys Corporation services and consulting services at issue and refund three months of fees paid by the customer for using Xensys Corporation services and consulting services. Exclusions: Xensys Corporation shall not be liable for infringement claims based on (i) the combination, operation or use of Xensys Corporation services and consulting services with hardware, data, content or software not supplied by Xensys Corporation; or (ii) modifications to the Xensys Corporation Software if the modifications were not made by Xensys Corporation.

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Customer agrees to indemnify, defend and hold harmless Xensys Corporation and its directors, officers, employees and agents, against any and all losses, damages, liabilities, judgments, awards and costs (including legal and expert witness fees and expenses) arising out of or related to any breach by Customer of this Agreement or claims by third parties arising from the customer's use of Xensys Corporation services and consulting services provided by Xensys Corporation hereunder.

Limitation of Liability

Notwithstanding anything to the contrary herein: (a) Xensys Corporation will not be liable for any losses, claims, expenses or damages arising out of use, or inability to use, the services and consulting services; and (b) Xensys Corporation will not be liable for unauthorized access to or alteration, theft or destruction of the customer's data files, programs, procedures or information through accident, fraudulent means or devices, or any other method, unless such access, alteration, theft or destruction is caused as a result of Xensys Corporation gross negligence or intentional misconduct.

The entire Xensys Corporation liability and the customer's exclusive remedies against Xensys Corporation (whether in contract, tort, warranty, or otherwise) are set forth in this Agreement. The Xensys Corporation total liability to the customer for damages (regardless of the form of action, whether in contract, tort, warranty or otherwise) shall in no event exceed the fees for the services and consulting services paid by the customer to Xensys Corporation under this Agreement for the three month period immediately preceding the event which caused the damage or injury.

Xensys Corporation shall not be liable for any special, incidental, indirect or consequential damages or for loss of profit, revenue, or data, even if Xensys Corporation shall have been advised of the possibility of such potential loss or damages.

Assignment

Neither this Agreement nor any rights granted hereunder may be sold, leased, assigned or otherwise transferred, in whole or in part by the customer by operation of law or otherwise, and any such attempted transaction shall be void and of no effect without the advance written consent of Xensys Corporation; PROVIDED, HOWEVER, that such consent shall not be required if the customer assigns or transfers this Agreement to a wholly owned subsidiary or in connection with a merger, acquisition, or sale of all or substantially all of its assets if the customer is the surviving entity, unless the assignee or surviving entity is a competitor of Xensys Corporation, or unless the assignee or surviving entity is not deemed by Xensys Corporation to be financially capable of undertaking the customer's obligations hereunder.

Waiver and Amendments

No failure or delay by either party in exercising any rights, power, or remedy under this Agreement shall operate as a waiver of any such right, power, or remedy.

Entire Agreement and Severability

This Agreement comprises the complete, final and entire Agreement between Xensys Corporation and the customer and supersedes any and all prior agreements between the parties regarding the subject matter contained herein. Should any term of this Agreement be finally determined by a court of competent jurisdiction to be invalid, unenforceable or otherwise contrary to law and equity, the parties agree that such provision shall be construed, limited, modified or, if necessary, severed, to the extent necessary to eliminate its invalidity or unenforceability, and that the other provisions of this Agreement shall remain unaffected. Each party agrees to pay all reasonable costs and expenses the other party incurs in successfully enforcing this Agreement, including expert witness and reasonable attorneys' fees.

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Force Majeure

Neither party shall be liable for any delay or failure in performance due to Force Majeure, which shall mean acts of God, earthquake, labor disputes, changes in law, regulation or government policy, riots, war, fire, flood, insurrection, acts of terrorism, sabotage, embargo, epidemics, acts or omissions of vendors or suppliers, transportation difficulties, unavailability of interruption or delay in telecommunications or third party services (including DNS propagation), failure of third party software or hardware or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of a Web site or other occurrences which are beyond either party's reasonable control. In the event that Xensys Corporation is prevented or delayed in the delivery or installation of Xensys Corporation services and consulting services for reasons beyond its control, such delivery or installation shall take place as soon thereafter as is reasonably possible.

Provision of Notice

All notices to a party shall be in writing and shall be made either through email or U.S. mail, postage prepaid. Notices to Xensys Corporation should be directed to Xensys Corporation at the address on the Contact page. Notices to the customer will be sent to the Authorized Administrative Contact as reflected in the customer's account set up.

The parties may change the address or designated recipient of notices hereunder by giving the other party at least five days prior notice thereof. Notices by email shall be deemed given when sent unless an undeliverable response is received. Notices by U.S. mail shall be deemed given three days after being deposited in the mail regardless of whether actually delivered or returned as undeliverable.

Applicable Laws

The validity, construction, and performance of this Agreement shall be governed by the laws of the State of Florida, excluding that body of law known as conflicts of laws and the United Nations Convention on Contracts for the Sale of Goods. Xensys Corporation and the customer agree to submit to the exclusive jurisdiction of the Circuit Court located in Hillsborough County, Florida, or the United States District Court for the Middle District of Florida, Tampa Division, in any action or proceeding arising out of or relating to, this Agreement; and the parties waive all objections based on venue or forum non convenient with respect to such courts and they agree not to commence any legal or equitable proceeding in any other court. The parties further agree that any mediation arising out of or relating to, this Agreement shall take place in Hillsborough County, Florida.

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Nondisclosure/Confidentiality

Each party shall retain in confidence the terms of this Agreement and all proprietary and confidential information transmitted to the other that the disclosing party has identified in writing, or orally and then subsequently identified in writing, as being proprietary and/or confidential, and will make no use of such information except under the terms and during the Term of this Agreement. However, neither party shall have an obligation to maintain the confidentiality of information that (a) it has rightfully received from another party prior to its receipt from the disclosing party; (b) the disclosing party has disclosed to a third party without any obligation to maintain such information in confidence, (c) enters the public domain or becomes generally known to the public by some action other than breach of this Agreement by the receiving party; or (d) is independently developed by the receiving party. Each party shall safeguard proprietary and confidential information disclosed by the other using the same degree of care it uses to safeguard its own proprietary and confidential information but, in no event, shall use less than a reasonable degree of care. Each party's obligation under this paragraph shall extend for a period of three years following termination or expiration of this Agreement. A party shall be entitled to all legal and equitable remedies, including but not limited to injunctive relief, whether temporary, preliminary or final, without proof of actual damages. In the event of a termination of this Agreement, each party agrees to return to the other within 60 days of a request, any property, data sheets, schematics, samples, customer lists, confidential information, in whatever form or media which are used by a disclosing party or which are furnished to a recipient.

Description of Services

Subject to the terms of this Agreement Xensys Corporation will provide IT solutions services and IT consulting services to customers in compliance with the terms hereof. Xensys Corporation acknowledges that each customer will select a specific package of IT solutions services and Xensys Corporation will provide only those services that the customer has selected to receive. Other options, services, and features may be available on an upgrade basis. Xensys Corporation is not responsible for providing any customer with access to the Internet or paying for such services or for providing any equipment necessary to make a connection to the Internet, including but not limited to computers and network equipment.

If any information provided by customer is false or inaccurate, Xensys Corporation retains the right to terminate the customer's right to use the IT solutions services and IT consulting services without prior notice or opportunity to cure.

Acceptable Use Policy

The customer will adhere to the Xensys Corporation Acceptable Use Policy set forth at http://www.xensys.net/index.php?location=aup and incorporated herein by reference with respect to the use of the IT solutions services and IT consulting services.

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Uptime Guarantee

Xensys Corporation provides to customers the Uptime Guarantee, also know as a Service Level Agreement ("SLA"), during any period in which a customer may use the IT solutions services. The Uptime Guarantee includes only the functioning of all network infrastructures within the Xensys Corporation Network and does not include Scheduled Downtime. The Uptime Guarantee does not apply when the customer is unable to send and receive email as a result of a failure external to the Xensys Corporation Network or failures, irregularities or inconsistencies in the customer's connection to the Internet or in any systems or software outside of the Xensys Corporation Network.

If Xensys Corporation fails to meet the Uptime Guarantee during any calendar month, the customer may request a refund in the amount equal to the percentage of Users that were adversely affected times 5% of customer's monthly fee for each 30 minutes of continuous downtime they experience. The refund will not exceed 50% of Customer's monthly fee. Refunds will be issued in the form of a credit towards customer's next invoice, unless the affected month is Customer's last month of service, in which case the refund will be issued via check or credit card within 60 calendar days from the end of the last service month.

If Xensys Corporation fails to comply with the Uptime Guarantee according to the provisions provided herein, Xensys Corporation will waive the thirty day notification period for Termination, as outlined below.

Email Message Filtering

Xensys Corporation provides filtering of Junk Email as a part of the Email Hosting Services contained within IT solutions services. Some of this filtering may be turned off at the customer's option. Email messages that are identified to be viruses will be rejected or deleted. Email messages that are identified to be spam, phishing or other disruptive content will be rejected, deleted or tagged and delivered. Xensys Corporation makes reasonable efforts to configure its automated software to accurately identify all forms of Junk Email. However, the customer acknowledges and agrees that it is not possible to assure that Xensys Corporation will at all times accurately identify such content and that Xensys Corporation is not obligated to do so. Xensys Corporation does not guarantee that it will at all times accurately identify and block all (or any) of the Junk Email that the customer receives through the use of the Email Hosting Services. Xensys Corporation also does not guarantee that the emails that are identified or blocked by the filtering software truly contain Junk Email content. Customer acknowledges and agrees that Xensys Corporation shall have no liability to Customer or a third party with respect to its Junk Email filter, any failure to receive any email as a result thereof, any receipt of Junk Email or the transmission of any viruses to the customer's or any other computer system or email program. The customer agrees to run a desktop virus scanner and firewall on computers that are connected to the Internet as an additional line of defense and to reduce the risk of systems being infected by viruses. The customer agrees to and understands the risks associated with using the Email Hosting Services and receiving and transmitting email messages via the Internet. The same techniques that Xensys Corporation applies to protect you from Junk Email are used by third-parties. Xensys Corporation cannot guarantee successful delivery of all email messages, and makes no representation or warranty that such delivery will take place.

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Email Message Storage

The Email Hosting Services have the fixed storage limit per mailbox, which the customer subscribes and pays for, and which can be upgraded for a fee. There is also a size limit per email message, which cannot be upgraded. Email messages when received may not be stored if the size of such email would put the destination mailbox over its storage limit or if the size of the message exceeds the per email message size limit. Xensys Corporation has no responsibility to and will not monitor the size of a mailbox in order to prevent it from reaching its storage limit. Customer understands and agrees that Xensys Corporation assumes no responsibility for the deletion of or failure to store email messages in excess of the agreed fixed storage limit.

Data Backup and Restore Policy

The customer's email messages are backed up to Data Backups. The Data Backups consist of a snapshot of the contents within each mailbox at a specific moment in time. The Data Backups may not store every email that is transferred or received using the Email Hosting Service, but rather it stores a copy of the email messages that exist within each mailbox during the time the Data Backups are processed each day. Copies of email messages may remain in the Data Backups for approximately two (2) weeks even after the email messages are deleted from the mailbox.

In the event that email messages are deleted from a mailbox as a result of something other than a failure of the Xensys Corporation Network, and the customer wishes for those email messages to be restored, a data restore may be requested from any of the still available recent Data Backups snapshots.

Customer Responsibilities

The customer will designate qualified personnel to act as liaisons between the customer and Xensys Corporation, and provide electronically or in writing to Xensys Corporation the name(s) of such currently designated personnel at all times.

The customer is solely responsible for Content, including any subsequent changes or updates. The customer represents and warrants that Content: (a) will not infringe or violate the rights of any third party including, but not limited to, intellectual property, privacy or publicity rights of others; (b) is not abusive, profane or offensive to a reasonable person; or (c) will not be hateful or threatening. Violations of the foregoing may result in early termination of IT solutions services and Email Hosting Services by Xensys Corporation in the sole discretion of Xensys Corporation. Content shall mean and refer to the content of all emails through the Email Hosting Services.

The customer is solely responsible for the Content of its transmissions. The customer agrees that the transmission of technical data, which is exported from the United States through the Xensys Corporation Network, will comply with U.S. law regarding the same. The customer further agrees that the Xensys Corporation Email Hosting Services provided to the customer hereunder will not be used (a) for illegal purposes or (b) to interfere with or disrupt other network users, network services or network equipment. Interference or disruptions include, but are not limited to, distribution of unsolicited advertising or chain letters, propagation of computer worms and viruses, and use of the network to make unauthorized entry to any other machine accessible via the network. Violations of the foregoing may result in early termination of Email Hosting Services by Xensys Corporation in the sole discretion of Xensys Corporation.

Upon expiration or termination of this Agreement, the customer must discontinue use of the Email Hosting Services and relinquish use of the IP address or address blocks assigned to it by Xensys Corporation in connection with the Xensys Corporation Email Hosting Services, including pointing the DNS for the customer's domain name(s) away from Xensys Corporation services.

The customer is solely responsible for the administration of all end user login names and passwords for the purpose of authenticating and authorizing access to the Xensys Corporation Email Hosting Services. Xensys Corporation provides a Control Panel that allows customers to administer most aspects of the Email Hosting Services, including but not limited to the end user login names and passwords. Customers are responsible to Xensys Corporation for maintaining the confidentiality of their Control Panel password and account and are responsible for all activities (whether by Customer or by others) that occur under the customer's password or account. The customer agrees to notify Xensys Corporation immediately of any unauthorized use of a password or account or any other breach of security. Xensys Corporation cannot and will not be liable for any loss or damage arising from the failure by a customer to protect its password or account information.

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Maintenance Windows

Xensys Corporation generally performs all system maintenance activities during a scheduled maintenance window. These windows are necessary to upgrade the system components that allow Xensys Corporation to meet service level commitments. The maintenance windows are currently scheduled for Saturdays and Sundays from 12:00 a.m. to 4:00 a.m. EST, though not every maintenance window is utilized. The maintenance schedule can also change.

Xensys Corporation attempts to perform all maintenance without the need for service downtime. However, occasionally downtime is required. Xensys Corporation will schedule at most one maintenance window per quarter (3 consecutive calendar months) where downtime may accrue for core Email Hosting Services, which include SMTP, POP3, IMAP and webmail. Downtime for other services such as Control panel and API may occur during any maintenance window. If downtime is planned for any service during maintenance, Xensys Corporation will make an announcement prior to the date of activity.

License The customer shall retain title to and all ownership rights to any and all text, multimedia or images (graphics, audio and video), data and the like (Content) provided by the customer and installed on a server, but grants Xensys Corporation the right and license to access and use Content for the purpose of complying with its obligations under this Agreement.

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