Cloud Services Agreement & SLA

Cloud Services Agreement & SLA This agreement ( Agreement ) is between APH Inc. (which may be doing business as Codero, or other fictitious names, and which is referred to in this Agreement as Codero ) and you. The Codero Terms of Service Agreement ( TOS ) (www.codero.com/legal/tos.pdf) is incorporated by reference into this Agreement. By agreeing to the terms of this Agreement, you are thereby agreeing to this Agreement, the TOS, and Codero s Legal Infringement Policy (www.codero.com/legal/lip.pdf) and Privacy Policy (www.codero.com/legal/privacy.pdf)(both of which are incorporated by reference into the TOS). 1. Services: 1.1. Services: Codero will provide you with the hardware, licensed operating system, licensed web server software, and internet connectivity level for each virtual machine ( VM ) you create in Codero s cloud environment ( Cloud Services ). Pricing and specifications for all VM options is found at www.codero.com/cloud-hosting and are subject to change without notice. 1.2. Support: Codero will also provide you with reasonable customer support during our standard customer support hours for your VM via telephone, email (support@codero.com) and live online chat. 1.3. Restrictions: You agree that you will not use or install unlicensed or illegitimate third party software on your VMs. 1.4. Excluded Support. Codero will not support any of the applications referenced in Section 1.3 above. In addition, we will not support your customers, provide training to you on how to configure or administer your VM, or provide support for HTML programming or any other scripting language. 1.5. Fees & Payment Method. 1.5.1. For each of your VMs you may choose monthly or hourly billing, except that special billing rules apply to secondary storage. Details of each billing method are set forth in Sections 1.6 to 1.8 below. All time is billed on a per-minute basis. 1.5.2. You agree to pay for the applicable fee or fees for each of the Cloud Services you order or select, including but not limited to all hourly fees, monthly fees, secondary storage fees, or other applicable fees. We may change the pricing for new Cloud Services at any time and for existing services on any Anniversary Date (as defined below). 1.5.3. Unless you cancel your Cloud Services or we cancel or terminate you account, we will automatically charge your credit card or bank account each month on the applicable next billing date for the Cloud Services you have selected. 1

1.5.4. You must have a valid credit card or current ACH instructions/banking information on file in order to use the Cloud Services. If, on your applicable billing date, your credit card or bank account will not accept the charges being billed, your Cloud Services will automatically cancel at that time. 1.5.5. You must notify Codero about any disputed billing charges related to your account within thirty (30) days. If Codero, in its reasonable discretion, validates your claim, your account will be credited with the validated amount. In addition, you understand and agree that Codero will not be liable for any claim, charge, or other liability of any type related to the Cloud Services after a period of one (1) year from when the specific Cloud Services were provided. 1.5.6. You specifically understand and agree that for each fee that you chargeback to your credit card that you will be liable to Codero (and Codero may collect from you) a Chargeback Fee in the amount of $50.00. 1.6. Monthly Billing. The following terms apply to monthly billing only: 1.6.1. For each VM for which you choose monthly billing, except for fees you incur for secondary storage, on the day you create your VM (its Anniversary Date ) your credit card or bank account will be charged in advance for the Cloud Services to be provided to you during the next month. Then, unless you terminate the VM, on each Anniversary Date thereafter your credit card or bank account will be automatically be charged for the Cloud Services to be provided for the VM until its next Anniversary Date. You may upgrade, downgrade, or cancel your VM at any time through ServerPortal.com and receive a pro-rata credit. You may not at any time convert a VM for which you have chosen monthly billing to hourly billing. 1.6.2. If you upgrade a VM on its Anniversary Date, on that date (and on each Anniversary Date thereafter until the VM is terminated) your credit card or bank account will be charged the full amount of the higher fees applicable to the upgraded VM. If you upgrade a VM on a date other than its Anniversary Date, then on that date your credit card or bank account will be charged the pro-rata portion of the higher fees applicable to the upgraded VM through its next Anniversary Date. Then, on each Anniversary Date thereafter, your credit card or bank account will be charged the full amount of the higher fees applicable to the upgraded VM. 1.6.3. If you downgrade a VM its Anniversary Date, then on that date (and on each Anniversary Date thereafter until the VM is terminated), your credit card or bank account will be charged the full amount of the lower fees applicable to the downgraded VM. If you downgrade a VM on a date other than its Anniversary Date, then on that date, your account will be credited the pro-rata portion of the difference between the higher and lower fees applicable to the downgraded VM through its next Anniversary Date. Then, on each Anniversary Date thereafter, your credit card or bank account will be charged the full amount of the lower fees applicable to the downgraded VM. 1.7. Hourly Billing. For each VM for which you choose hourly billing, except for fees you incur for secondary storage, your credit card or bank account will be charged once each month in arrears for Cloud Services provided for that VM in the previous month. However, if the outstanding balance of any VM becomes excessive before its next scheduled billing date, you understand and agree that Codero may automatically charge your credit card or bank account before the VM s Anniversary Date for the excessive portion of the fees that have been incurred. You may upgrade, downgrade, or cancel your account at any time through 2

ServerPortal.com. 1.8. Secondary Storage Billing. Secondary storage fees you incur in any calendar month will be charged to your credit card or bank account on the first day of the next calendar month. Your secondary storage charges will be calculated by multiplying your peak usage during a calendar month by the applicable usage rate, found at www.codero.com/cloud-hosting. 1.9. Modifications. You may upgrade, downgrade, or terminate any VM at any time through ServerPortal.com. Codero can only accept upgrade, downgrade, termination, and billing frequency change payment instructions submitted through ServerPortal.com. 1.10. Overages. You understand and agree that you are responsible for any and all network bandwidth, core, hard-drive usage, and any other overage charges you incur for using the Cloud Services, even if such overages arise because your account is compromised or hacked. 1.11. Payment Method Validation. If you are a new or existing Codero customer and you are initiating Cloud Services, in order to properly validate your payment method a $1.00 fee will be charged to your payment method when your Cloud account is established. If your payment method validates properly, this $1.00 fee will automatically be credited to your Cloud account and will be applied automatically toward your first payment to Codero for Cloud Services. 1.12. Suspension & Cancellation: 1.12.1. Codero may, immediately and without notice or obligation to you, unilaterally suspend or cancel your Cloud Services and terminate the TOS if (a) payment for your Cloud Services rejected for non-payment by your credit card company or bank or (b) we determine, in our sole discretion, that you have or it is alleged that you have otherwise violated the TOS. 1.12.2. Codero may unilaterally cancel your Cloud Services and terminate the TOS at anytime for any reason without compensation to you upon ten (10) days written notice to you sent to the address or e-mail address you currently have on file with Codero. Also, Codero may refuse to open a new account for any person or entity. 1.12.3. You understand and agree that upon cancellation of your Codero Services and termination of the TOS that Codero has the right to immediately bar your access to your server or account and/or delete any and all content on or related to your account. 1.13. IP Addresses. 1.13.1. Only Internet Protocol (IP) addresses assigned by Codero to your VM may be used on your VM. 1.13.2. Codero will initially assign one (1) IP address to your VM. You may request to upgrade your VM to obtain additional IPs (each an Additional IP ) but we will only grant such an upgrade if we determine that (a) you are using at least 80% of your assigned IP addresses at the time of your request and (b) each IP address you are using is, in our sole discretion, being used in a manner that does not violate this Agreement or the TOS. Upgrade charges for additional IP addresses can be found at www.codero.com/cloud-hosting. 3

1.13.3. Codero may swap-out any IP address assigned to your VM with another IP address at any time. Codero may revoke any Additional IP assigned to you for more than ninety (90) days if, at that time, you not are using at least 80% of your assigned IP addresses. Codero may revoke any IP Address at any time that, in our sole discretion, is being used in a manner that violates this Agreement or the TOS. 1.13.4. You understand and agree that you will be automatically be assessed a charge of $50.00 for (a) each IP address assigned to your account that, in Codero s reasonable discretion, is blacklisted or, if your account is closed, was blacklisted, and for (b) each IP address which was blacklisted because of your action or inaction, even if it was not assigned to your account or if your account has been closed. 1.13.5. Codero owns and manages all IP addresses used on our VMs and network and grants you no ownership or transfer rights in our IP addresses whatsoever. 1.14. This Cloud Services Agreement & SLA was updated on or about March 22, 2011. 2. Service Level Agreement: 2.1. VM Hardware Replacement. The processor, RAM, hard disk, motherboard, NIC card, and Power Supply ("VM Hardware") for your VMs will function properly at all times (except during Maintenance Windows). This guarantee does not cover time required to perform applicable data restores and backups if required to replace faulty VM Hardware. Any Codero breach of this guarantee will be referred to as a "VM Hardware Breach." 2.2. Power and HVAC Availability. The power and HVAC systems for your VM ("Power System") will function properly at all times (except during Maintenance Windows). Any Codero breach of this guarantee will be referred to as a "Power System Breach." 2.3. 99.9% Network Uptime. The network for your VM will be functioning and available 99.9% of the time in any given month (except during Maintenance Windows). Any Codero breach of this guarantee will be referred to as a "Network Uptime Breach." 2.4. VM Delivery. Your VM will be setup in Codero s data center, connected to the Internet, with the operating system and control panel in place, within 30 minutes after your account signup. This guarantee is not applicable to custom VM configurations or custom software applications. Any Codero breach of this guarantee will be referred to as a "VM Setup Breach." 2.5. Remedies. Except as set forth below, for every hour your VM experiences either a (1) VM Hardware Breach, (2) a Power System Breach, (3) a Network Uptime Breach, or (4) a VM Setup Breach, Codero will deduct 5% off (each a "Downtime Credit") of the charges on your next billing statement, up to 100% of such charges, but only for level of Cloud Services that were in place at the time of the applicable breach. You may not receive multiple Downtime Credits for multiple breaches that occurred at the same time. 2.6. Procedures. In order to qualify for a Downtime Credit, you must submit a Trouble Ticket to Codero via ServerPortal.com. The length of each VM Hardware Breach, Power System Breach, Network Uptime Breach, or VM Setup Breach (each a "Breach") will be measured from the time the Trouble Ticket is received and validated by Codero technicians to the time Codero, in its sole discretion, considers the issue resolved. 2.7. Limitations. You may qualify for Downtime Credits for more than one type of Breach, but the total of Downtime Credits given in any one month may never exceed 100% of the charges you incur for using Cloud Services whether such charges are (a) incurred in the next month 4

(for monthly billing), (b) incurred during the current billing period (for hourly billing) (c) incurred during the current month (for secondary storage). 2.8. Exceptions. Downtime Credits may not be issued (and any applicable Downtime Credits will be forfeited) if your account is past due or your account is suspended or cancelled by Codero for violating Codero policies. In addition, Downtime Credits may not be issued if a Breach arises out of (a) any action taken by you or another person authorized to access your account, (b) the failure of systems, internet infrastructure, network equipment, power, facilities, connections or services provided by a third party to Codero, or (c) application, software, or operating system failures, denial of service attacks, hacker activity, or other malicious events. 2.9. Maintenance Windows. Codero "Maintenance Windows" include both Scheduled Maintenance Windows (i.e., you will receive prior notice) and Emergency Maintenance Windows (i.e., because of immediate threats to Codero systems or to your VM you may receive no prior notice). 5