gistfile1.txt

TextDrive Terms of Service

TextDrive, Inc. will provide for availability for Web and Email Hosting Services as herein defined.


DEFINITIONS:

"Agreement" means this written agreement between TextDrive Inc. and you the Client.
“Bandwidth" is the amount of bytes (as referred to in kil-, mega- and giga- units) that are allow to move in and out of the servers over a network connection to the other servers and the Internet.

“Commercial Managed Service Provider" means a managed server company who is the provider of leased servers and network connections.

“Derivative Work" means any modifications made to any computer source code, object code, CGI code or HTML code.

“Domain Name" or “Name" is the alpha numeric name associated with Client’s web site, web pages or electronic mail.

“Executable Code" means pages that are written in a executable script language such as PHP, Perl, Python, Ruby, ASP, C and C-derivatives that can be executed by a web server module or as CGI.

“Email" are messages that are sent from one “Email server" to another and can be downloaded or viewed by Client.

“Email Hosting Service Provider" or “Email Host" means an entity that stores third party email messages on its servers, receives or stores commands or data transmitted by Internet users, transmits emails to users’ Internet addresses, and performs related maintenance.

“Host" refers to an Email and Web Hosting Service Provider

“HTML Code" means hypertext mark up language, which is the language commonly used for developing the appearance of Web Sites.

“Intellectual Property Rights" means rights in any patent, copyright, trademark, trade dress, and trade name; Related registrations and applications for registration; and Trade secrets, moral rights and goodwill.

“Internet Service Provider" or “ISP" means an entity that connects you, the Client, to the internet.

“Plan" refers to a combination of disk space, network bandwidth

“Robot" or “Spider" means an automated device used by a searching service to gather pieces of information about Web Sites.

“Spam" is unsolicited commercial email.

“Web Page" means each individual screen display contained in Client’s Web Site. “Web Site" means all Web Pages and domain names associated with Client and its products or services, and which are stored on TextDrive servers.

“Web Site Hosting Service Provider" or “Web Host" means an entity that stores third party Web Sites on its Internet server computer, receives or stores commands or data transmitted by Internet users, transmits Web Page data to users’ Internet addresses, and performs related maintenance.

“World Wide Web", or “WWW", is a subset of the Internet, and is a common system for browsing Internet Web Sites.


HOSTING SERVICES:

1. Maximum Hard Disk Space. Client will be provided with the amount of disk space stated in either their dedicated quote or corresponding plan from http://textdrive.com/plans/. Disk space and usage are monitored by TextDrive, Inc., when possible quotas are soft and responsible overages should not impaired Client’s ability to access said disk space. Clients are responsible for purchasing additional disk space beyond that detailed in their “Plan" or to remove files in order to bring their usage with their Plans’s limit.

2. Jurisdiction and Jurisdictional Disputes. TextDrive Inc is a California corporation with a presence in the state of Texas. The parties recognize that TextDrive, Inc is under the legal jurisdiction of the States of California and Texas, and US federal law. The parties expressly recognize that, where TextDrive, Inc. is acting solely as Client’s Host, TextDrive, Inc is not engaged in, and is not actively soliciting, interstate or international commerce for said client. Where TextDrive Inc is a named party to any type of dispute or litigation involving any acts by Client that affect out of state persons or entities, Client agrees that it shall indemnify, hold TextDrive Inc. harmless, defend TextDrive, Inc. and challenge the jurisdiction of out of state authorities over TextDrive, Inc. .

3. Storage, Backups and Internet Link. TextDrive Inc. shall store Client’s Web Sites and Email message on TextDrive Inc’s servers. The parties expressly recognize that Internet servers and links are susceptible to crashes and down time. TextDrive, Inc. warrants that it shall maintain a consistent link with the Internet, but TextDrive, Inc. cannot and does not warrant that it shall maintain a continuous and uninterrupted link. However, TextDrive, Inc does pass through the following Service Level Agreement from it’s Managed Hosting Provider (ThePlanet, Inc. of Dallas Texas) and that is 100% Power Uptime, 100% Network Uptime and < 2 hours hardware hardware downtime.

TextDrive Inc’s does use RAID5-arrayed hard drives which provide for hard drive redundancy in the case of a hard disk failure; TextDrive, Inc also performs daily- incremental and weekly-full back ups to a Veritas Tape Server, hourly snapshots and daily archives to an a remote server and critical files to Network Attached Server.
TextDrive Inc. does monitor all services on our servers at minimum of 5 minutes
intervals.

4. Bandwidth. TextDrive, Inc agrees that it shall maintain a 100Mbps connection to
each server, however, TextDrive, Inc. does not warrant any response rate or download time beyond it’s control, as this is depending on Client’s and End Users ISP connections.

5. Maintenance. TextDrive Inc. may, at its own discretion, temporarily suspend all service for the purpose of repair, maintenance or improvement of any of its systems. However, TextDrive, Inc. shall provide prior notice where it is reasonably practicable under the circumstances, and shall restore service as soon as is reasonably practicable. Client shall not be entitled to any setoff, discount, refund or other credit, in case of any service outage which is beyond TextDrive Inc’s control or which is reasonable in duration.

6. Security. The parties expressly recognize that it is impossible to maintain flawless security, but TextDrive, Inc. shall take reasonable steps to prevent security breaches in server interactions with Client and security breaches in TextDrive Inc’s server interaction with resources or users outside of any firewall may be built into TextDrive Inc’s server. Specifically all TCP and other network traffic is monitored by Network Intrusion Detection Systems, Web traffic is monitored and some activities are prevented by a Server Security Module, incoming and outgoing email if filtered through several means to prevent the transmission of spam, viruses, exploits and Trojan horses. Full system logging and accounting is done with each command and keystroke recorded to external log files. These log files are audited and maintained for 7 days and then destroyed, However, Client is solely responsible for preventing password protected pages within its Web Site from being automatically indexed and linked to search engine Robots or Spiders, or accessed by outside parties. Client is solely responsible for any damage caused by such unauthorized access, and Client indemnifies and holds TextDrive, Inc. harmless for any compromise of Client’s security that resulted from their own actions.

7. Privacy. Message and data encryption is possible on TextDrive Inc.’s servers, however Client is solely responsible for encoding its Web Site and Emails to conform with generally accepted encryption standards, and Client indemnifies and holds TextDrive Inc. harmless for any compromise of Client’s encryption method.

8. Caching Permitted by TextDrive, Inc. Client expressly grants to TextDrive, Inc a license to cache the entirety of Client’s Web Site and Email in RAM, hard disk space, web site caches, dynamic language caches and database server caches, Client expressly agrees that such caching is also deemed "fair use" under the United States Copyright Act, and Client expressly agrees that such caching is not an infringement of any of Client ’s Intellectual Property Rights.

9. Export Control. Client agrees that its Web Site and Email shall comply with all export, re export or import laws and regulations of any jurisdiction from which Client’s Web Site is transmitted or accessed. Client agrees that it shall obtain written authority from all appropriate governmental bodies, if Client intends at any time to re export any items originating from that jurisdiction to any proscribed destination. Client shall indemnify TextDrive Inc., hold TextDrive Inc harmless and provide a defense to TextDrive Inc for any such compromise or violation of export/re-export//import laws.

10. Software updates and installations. TextDrive, Inc shall perform all system administrative software updates and installations for web servers, email servers, and all related software systems.


CLIENT RESPONSIBILITIES:

1. Client will designate qualified personnel to act as liaisons between Client and TextDrive, Inc.

2. Client will adhere to and will require any Third Party having access to the TextDrive, Inc servers to adhere to Client ’s Acceptable Use Policy as set forth at the following: http://www.textdrive.com/aup/ policy, and referred hereto as “AUP."

3. Client is responsible for obtaining and complying with license terms for all Client-provided software, and represents to TextDrive, Inc that the terms of such licenses shall allow use of the software on the Hardware.

4. Client is solely responsible for Content, including any subsequent changes or updates made or authorized by Client. Client represents and warrants that Content: (i) will not infringe or violate the rights of any third party including, but not limited to, intellectual property, privacy or publicity rights of others; (ii) is not obscene, profane or offensive to a reasonable person; or (iii) will not be hateful or threatening. Violations of the foregoing by Client will result in early termination of services by TextDrive, Inc

5. Client is solely responsible for the Contents of its transmissions and the transmissions of Third Parties accessing the TextDrive, Inc application through Client. Client agrees to comply with U.S. law with regard to the transmission of technical data which is exported from the United States through TextDrive, Inc servers. Client further agrees not to use the any hosted application services (i) for illegal purposes or (ii) 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 by Client will result in early termination of services by TextDrive, Inc.


EXPIRATION

Upon expiration of this Service Level Agreement, Clients must relinquish use of the IP address or address blocks assigned to it by TextDrive, Inc. The Client agrees to provide a minimum of 45 days notice before cancellation.


DISCLAIMERS:

a. Liability Limitations. The goods and services provided by TextDrive, Inc are provided AS IS, WITHOUT WARRANTY OF ANY KIND TO CLIENT OR ANY THIRD PARTY, INCLUDING, BUT NOT LIMITED TO, ANY EXPRESS OR IMPLIED WARRANTIES OF: 1) MERCHANTABILITY; 2) FITNESS FOR A PARTICULAR PURPOSE; 3) EFFORT TO ACHIEVE PURPOSE; 4) QUALITY; 5) ACCURACY; 6) NON INFRINGEMENT; AND 7) TITLE. CLIENT AGREES THAT ANY EFFORTS BY TextDrive, Inc TO MODIFY ITS GOODS OR SERVICES SHALL NOT BE DEEMED A WAIVER OF THESE LIMITATIONS, AND THAT ANY TextDrive, Inc WARRANTIES SHALL NOT BE DEEMED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. CLIENT FURTHER AGREES THAT TextDrive, Inc SHALL NOT BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, INTERRUPTION OF BUSINESS, OR ANY DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND WHETHER UNDER THIS AGREEMENT OR OTHERWISE, EVEN IF TextDrive, Inc WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR WAS GROSSLY NEGLIGENT. MODIFICATIONS MADE TO CLIENT’s WEB SITE BY CLIENT OR ANY THIRD PARTY VOIDS ANY REMAINING EXPRESS OR IMPLIED WARRANTIES. Some jurisdictions do not permit the exclusion or limitation of liability for consequential or incidental damages, and, as such, some portion of the above limitation may not apply to CLIENT. In such jurisdictions, TextDrive, Inc ’s liability is limited to the greatest extent permitted by law.

b. TextDrive, Inc Not Liable for Delays or Defaults. TextDrive, Inc shall not be liable for delays or defaults in furnishing goods or services hereunder, if such delays or defaults on the part of TextDrive, Inc are due to:
i. Acts of God or of a public enemy;
ii. Acts of the United States or any state or political subdivision thereof;
iii. Fires, severe weather, floods, earthquakes, natural disasters, explosions or other catastrophes;
iv. Embargoes, epidemics or quarantine restrictions;
v. Shortage of goods, labor strikes, slowdowns, differences with workmen or labor stoppages of any kind;
vi. Delays of supplier or delay of transportation for any reason;
vii. Causes beyond the control of TextDrive, Inc in furnishing items or services including, but not limited to, breakdown or failure of machinery or equipment, or delay in Client reporting problems or furnishing information or materials. Acceptance of delivery of goods or services shall constitute a waiver and release of TextDrive, Inc by Client for any claim for damages, setoff, discount or other liability on account of delay.

c. Third Party Transactions at Client’s Peril. The parties expressly recognize that TextDrive, Inc does not operate, control or endorse any information, products or services on the Internet, and that any entities that do offer such information, products or services are not affiliated with TextDrive, Inc. TextDrive, Inc does not make any express or implied warranties, representations or endorsements TO CLIENT OR ANY THIRD PARTY whatsoever with regard to any information, products or services provided through TextDrive, Inc AND OBTAINED OR CONTRACTED OVER the Internet, including, without limitation, warranties of: 1) MERCHANTABILITY; 2) FITNESS FOR A PARTICULAR PURPOSE; 3) EFFORT TO ACHIEVE PURPOSE; 4) QUALITY; 5) ACCURACY; 6) NON INFRINGEMENT AND 7) TITLE. TextDrive, Inc shall not be liable TO CLIENT OR ANY THIRD PARTY for any cost or damage arising either directly or indirectly from any transaction involving third parties’ information, products or services. Some jurisdictions do not permit the exclusion or limitation of liability for consequential or incidental damages, and, as such, some portion of the above limitation may not apply to Client. In such jurisdictions, TextDrive, Inc ’s liability is limited to the greatest extent permitted by law.

d. Downloading of Data or Files at Client’s Peril. The parties expressly recognize that TextDrive, Inc cannot and does not guarantee or warrant that files available for downloading through TextDrive, Inc will be free of infection, viruses, worms, Trojan horses or other code that manifests contaminating or destructive properties. Client agrees that it shall be solely responsible for implementing sufficient procedures to satisfy Client’s particular requirements for accuracy of data input and output, and for maintaining a means external to TextDrive, Inc for the reconstruction of any lost data. The parties also expressly recognize that the Internet contains unedited materials, some of which are unlawful, indecent, or offensive to Client, and access to such materials by Client is done at Client’s sole risk.