HOSTING TERMS OF SERVICE:

This agreement documents the terms of service for web accounts provided by Evolv to the account holder.

1. The account holder agrees to pay for Evolv's services. Accounts are invoiced at the beginning of their 12 month annual hosting service. Any overages incurred during the previous month will be invoiced separately. Invoices for charges are sent to the email address provided by the account holder to Evolv. Regardless of whether an emailed invoice is received by the accountholder, the payment due date is thirty (30) days after being invoiced. There will be a thirty dollar ($30) charge for all bounced checks or cancelled payments. If an account becomes overdue, Evolv may, at its discretion, take any or all of the following actions:
a) apply a Late Fee of twenty ($20) dollars or ten percent (10%) of the balance due, whichever is greater.
b) disable the account and all services associated with the account. An account disabled for nonpayment will be unable to retrieve any emails or files from the host servers and any emails received by the host's mailserver while the account is disabled shall be the property of Evolv until the account balance is paid;
c) terminate the account and permanently erase all files, emails and other data associated with the account, without providing to the account holder or preserving for the account holder, copies of any files, emails or other data. In the case of termination for the reason of nonpayment, the account holder is still responsible for payment of all charges incurred up to the date the account was terminated, including any late charges and collection fees.

2. Evolv provides a 30-day money-back guarantee which applies to all shared hosting plans except E-Commerce accounts. If, within the first thirty (30) days of account holder signing up for service with Evolv, account holder is unsatisfied with the service, then account holder may cancel within that 30 day period and request a refund. Refunds will not include overage fees, such as those for excess disk or bandwidth usage. Account holder understands that the money-back guarantee is NOT a free trial period and that the billing period starts, and charges begin accruing, from the original date that account holder first signs up for service.

3. The account holder is responsible for the actions of any person using that account.

4. Any use which interferes with any Evolv server's ability to function is prohibited. Portscanning and running any daemons, including irc bots, is also prohibited.

5. Mail abuse (including, but not limited to, mass mailing unsolicited email (SPAM), using SPAM to promote any email address, website, or other contact point located on the host's network, email forgery, usenet mass crossposting articles and usenet posting unrelated to group topics, or PRESENTATION OF EMAIL MARKETING INFORMATION, SOFTWARE, AND/OR SERVICES), direct or indirect, whether committed directly by the account holder, the account holder's employee, agent, or marketing affiliate, is prohibited. The account holder of any account involved in such mail abuse agrees to pay a five hundred ($500) dollar surcharge to Evolv and have their account terminated. The account holder agrees to pay all other damages or fees associated with any unsolicited commercial email originating from or advertising the account holder's account at Evolv.

6. Use of the host's facilities to commit network abuse (including, but not limited to, denial of service attacks such as pingbombing, email bombing, "smurf", "winnuke", "land", "teardrop", etc.) or otherwise compromise the security of hosts or networks is prohibited.

7. All data stored or transmitted must be legal under all applicable US laws. The account holder is solely responsible for determining the legality of their data which is stored or transmitted. The account holder agrees to defend, indemnify and hold harmless Evolv from any claims resulting from use of the account holder's account which damages the account holder or any other party. Accounts serving pornographic material shall be subject, at Evolv's sole discretion, to an additional monthly fee for placing these accounts on separate IP addresses from other Evolv accounts.

8. If the account holder becomes the target of a network attack or if vulnerable or insecure scripts belonging to the account holder are used to relay SPAM or otherwise become exploited by internet users, The host reserves the right to take any necessary actions (including, but not limited to, removal of any script or temporary suspension of the account holder's account) required to return the host's servers or network operation to normal. We use software to scan all incoming email for viruses and will quarrantine any email that fits known virus signatures. However, Evolv does not guarantee that this precaution will prevent an account holder from receiving email viruses.

9. Evolv will use its best efforts to maintain, but does not guarantee, the privacy of email, network use, and the contents of user directories. Evolv will not disclose any files or information about the account holder unless compelled to do so by a court order, except that in the case of unpaid, overdue accounts, Evolv may disclose any personal information necessary for collections to third party collection agencies. Evolv may also maintain a public link to the account holder's website unless the account holder makes a request to the contrary in writing to Evolv.

10. Use of Evolv's host services, including the storage of information, is at the account holder's sole risk. Evolv does not warrant either the results to be obtained from the service or that the service will be uninterrupted or error free. Evolv's host services are provided on an "as is" basis without warranties of any kind, either express or implied, and with no implied warranty of merchantability and no implied warranty of fitness for a particular purpose. Neither Evolv nor anyone else involved in creating, producing, or delivering Evolv services shall be liable for any direct, indirect, incidental, special or consequential damages arising out of the use of our services, the inability to use our services, or any breach of any warranty. Evolv shall not be liable or responsible for any damage suffered by the account holder for damages, including but not limited to, loss of data, delays, nondeliveries, misdeliveries, service interuptions, negligence of Evolv or the negligence of Evolv's upstream providers. Neither shall Evolv be liable or responsible for the negligence, actions, errors, or omissions of the account holder. The provisions of this paragraph will survive termination of this agreement.

11. The account holder will indemnify and hold harmless Evolv against any loss, damage, cost and expense which Evolv may incur or become liable for by reason of claims or actions for libel, violation of privacy rights, plagiarism, copyright infringement, and claims arising in connection with data transmitted pursuant to the terms and provisions of this agreement and any claims or suits resulting from the account holder's use of the service including, without limitation, the expense and cost of defending any and all such claims and actions. The provisions of this paragraph shall survive termination of this agreement.

12. Evolv may terminate service to the account holder at anytime, without notice, for violation of this agreement. Evolv will not be liable for any damages or harm to the account holder resulting from such termination. If an account is terminated for violation of this agreement, Evolv will not provide to the account holder or preserve for the account holder, copies of any files, emails or other data. Evolv reserves the right to terminate any program or script that Evolv deems harmful to the performance of Evolv's host servers, or that compromises the security of the host or any other account holder.

13. Evolv will make reasonable efforts to satisfy account holder requests for technical and/or administrative changes to the account holder's accounts. Certain tasks, such as installing specially requested software, may, at the sole discretion of Evolv, incur a service fee based on an $80/hour labor rate, billed in one-quarter hour increments with a one-quarter hour minimum charge. The labor rate for work requested to be performed after normal business hours (times other than 8am-5pm Monday through Friday) is $160/hour. Evolv will notify the account holder of any charges prior to performing the work requested.

14. Completion of the Evolv's signup form webpage or use of an Evolv host account indicates acceptance of the terms of this agreement by the account holder.

15. This agreement shall be governed by and construed in accordance with the laws of Montana. Should any term be declared invalid by a court with jurisdiction, then the invalid term shall be severable and the remainder of this agreement shall remain in force. This agreement contains the full understanding of the parties with respect to the subject matter hereof. Any communication or correspondence with the account holder which is in any way inconsistent with, or which adds to, the provisions of this agreement is null and void.

16. This agreement is subject to change. A current copy will always be located at: http://www.evolv.com/web_hosting/termsconditions.htm
Continued usage of the account by the account holder after such a change constitutes the account holder's acceptance of the revised terms.

Last Revised: February 21, 2004