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Ping82.com Terms of Service

Last Updated: January 31, 2008

THIS AGREEMENT is made and entered into between Ping82.com ("Ping82.com") and the SUBSCRIBER named above ("SUBSCRIBER") with respect to the service known as Ping82.com ("Ping82.com") which is owned by Ping82.com and which is a computer on-line service in which SUBSCRIBER shall have the right to operate its own system. Subject to the terms and conditions of this Agreement, Ping82.com authorizes SUBSCRIBER to access and utilize Ping82.com throughout the term of this Agreement.

1. Ping82.com. Throughout the term of this Agreement, SUBSCRIBERS shall be permitted to provide password access to Ping82.com to that number of users ("USERS") for which Subscriber has paid the required fee in order for USERS to perform such activities as creating invoices, sharing files, sending e-mails and managing staff and clients and such other lawful purposes as Ping82.com permits. Ping82.com may, without advance notice or liability, add, discontinue, or revise any aspect of Ping82.com, including, without limitation, such aspects as scope of service, availability of service, time of service availability, or the hardware and/or software required for SUBSCRIBER to access and use Ping82.com, subject to the terms and conditions of this Agreement.

2. SUBSCRIBER Equipment and Remote Connect Charges. SUBSCRIBER shall be responsible for obtaining and maintaining, at its own expense, all computer hardware, software, communication equipment, internet access accounts and access lines necessary to access and utilize Ping82.com.

3. User Passwords and Use Thereof. All USERS will be responsible for maintaining the confidentiality of their passwords and SUBSCRIBER will be responsible for all activities and charges resulting from the use of their edition of Ping82.com, including unauthorized use.

4. Conduct of SUBSCRIBER. SUBSCRIBER agrees that all USERS authorized by SUBSCRIBER to access Ping82.com shall use Ping82.com only for lawful purposes. SUBSCRIBER and its USERS will not post or transmit on or through Ping82.com any libelous, obscene, or otherwise unlawful information of any kind, and they will not engage in any conduct involving Ping82.com that would constitute a criminal offense or give rise to civil liability under any local, provincial, state, federal or other law or regulation and SUBSCRIBER and its USERS will not upload, post, reproduce or distribute to or through Ping82.com any material protected by copyright, privacy or other proprietary right without first obtaining the written permission of the owner thereof. Any complaint with regard to "SPAM" may result in the immediate termination of Subscribers access to Ping82.com. SUBSCRIBER acknowledges that Ping82.com, Ping82.com software and software accessible through Ping82.com contain copyrighted and other proprietary and confidential information and material, and SUBSCRIBER and its USERS will respect all such proprietary rights and take such precautions as may be reasonably necessary to protect private, confidential and other proprietary information and material from unauthorized use or disclosure.

5. Accuracy and Validity of Information and Opinions. Ping82.com will make a reasonable effort to ensure that information it contributes to Ping82.com is timely and accurate. However, Ping82.com does not endorse or warrant and assumes no responsibility whatsoever for the timeliness, accuracy, reliability, completeness or usefulness of any statement, opinion, advice, service or other information contributed to Ping82.com.  6. Monitoring of Ping82.com. Ping82.com may, in its discretion, monitor Ping82.com and SUBSCRIBERS and USER'S use thereof to determine and ensure compliance with this Agreement and to protect itself and other USERS of Ping82.com from fraudulent, unlawful, dangerous or abusive use of Ping82.com. Ping82.com may also intercept and disclose any content, record, use or other information to the extent reasonably necessary to protect the rights of Ping82.com, for mechanical or service quality control as permitted by law, or to comply with any law, regulation, or governmental request. Ping82.com may also, in its discretion, review, edit, refuse to post or remove any material or information submitted or transmitted to Ping82.com. Ping82.com will not, however, intentionally intercept or disclose any private e-mail message unless required or permitted by law to do so, and Ping82.com shall be under no obligation to monitor, review, screen, edit or otherwise control any information or material contributed to Ping82.com.

7. Ping82.com Licenses. Ping82.com hereby grants to SUBSCRIBER a non-exclusive, non-transferable license to use Ping82.com and to have its USERS use Ping82.com in accordance with the terms and conditions of this Agreement. SUBSCRIBER agrees to respect the copyright and other proprietary rights of third party licensors of Ping82.com and to abide by the terms of license agreements applicable thereto and to ensure that its USERS also abide by the terms of license agreements applicable thereto.

7.1 Throughout the term of this Agreement, SUBSCRIBER and its USERS may use Ping82.com solely for the purpose for which it is intended and SUBSCRIBER may use Ping82.com for the number of USERS for which SUBSCRIBER has paid the applicable fee to Ping82.com If subscriber exceeds paid for file sharing capacity or monthly bandwidth (20 times total file sharing capacity), Subscriber shall automatically be billed for such additional file sharing capacity and/or related bandwidth charges at the rate posted on www.ping82.com from time to time.

7.2 Ping82.com is the copyright owner of Ping82.com. The technical procedures, processes, methods of operation, and concepts which are embodied within Ping82.com are trade secret information of Ping82.com and/or its licensor(s). This license is not a sale of a copy of Ping82.com and does not render SUBSCRIBER or its USERS the owner of a copy of Ping82.com. Ownership of Ping82.com and all components and copies thereof shall at all times remain with Ping82.com and its licensor(s), regardless of who may be deemed the owner of the tangible media in or on which Ping82.com may be copied, encoded or otherwise fixed. However all data and files submitted by SUBSCRIBER and its USERS to Ping82.com shall at all times be the property of SUBSCRIBER.

7.3 SUBSCRIBER and its USERS may not make any copies of Ping82.com. SUBSCRIBER will make all reasonable efforts to prevent any unauthorized copying of Ping82.com or disclosure or use of Ping82.com's or any third party licensor's trade secret information, and SUBSCRIBER will advise its USERS who are permitted access to Ping82.com of the restrictions upon duplication, reverse engineering, disclosure and use contained in this Agreement. SUBSCRIBER will be liable for any unauthorized copying, reverse engineering, disclosure and/or use by its USERS, employees or agents.

7.4 SUBSCRIBER will not lease, rent, sell, pledge, assign, sublicense, loan or otherwise transfer to any third party any part of Ping82.com or any copy thereof or any of SUBSCRIBER'S rights under this Agreement without the prior written consent of Ping82.com.

7.5 Subject to the limitations of paragraph 11, Ping82.com will indemnify SUBSCRIBER and hold SUBSCRIBER harmless against costs, expenses and liabilities upon any claim by any third party that Ping82.com infringes or violates any copyright, trademark or trade secret rights of such third party, provided that: a) SUBSCRIBER notifies Ping82.com within seven (7) days in writing of any notice of any such claim; b) SUBSCRIBER cooperates with Ping82.com in all reasonable respects in connection with the investigation and defense of any such claim; c) Ping82.com shall have sole control of the defense of any action on any such claim and all negotiations for its settlement or compromise; and d) should Ping82.com become, or in Ping82.com's opinion be likely to become, the subject of a claim of copyright, patent or trademark infringement or trade secret misappropriation, SUBSCRIBER will permit Ping82.com, at Ping82.com's option and expense, either to: i) procure for SUBSCRIBER the right to continue using Ping82.com, ii) replace or modify the same so that it becomes non- infringing; or iii) terminate this license insofar as the use of Ping82.com is concerned, and refund to SUBSCRIBER the proportionate amount of prepayment fee paid to Ping82.com for the period for which such payment has not been earned. Notwithstanding anything herein to the contrary, however, Ping82.com shall have no obligation or liability to SUBSCRIBER under any provision of this paragraph if any copyright, patent or trademark infringement or trade secret misappropriation claim is based upon the use of Ping82.com in a manner other than that for which it was furnished by Ping82.com or upon any modification by or for SUBSCIBER, in such a way as to cause it to become infringing.

7.6 If Ping82.com does not conform to and perform substantially in accordance with Ping82.com's specifications, Ping82.com will endeavor to correct any failure of Ping82.com to so conform or perform; provided that: a) SUBSCRIBER gives Ping82.com written notice of any such claimed failure to so conform or perform within said fifteen (15) day period of the effective date; and b) such failure to so conform or perform is not, in Ping82.com's reasonable opinion, a result of any modification of or damage to Ping82.com or its operating environment or of SUBSCRIBER and its USER'S failure to operate Ping82.com in the proper hardware and software environment. SUBSCRIBER'S sole and exclusive remedy for breach of the foregoing warranty shall be that: a) Ping82.com will endeavor to correct within a reasonable time any reported failure of Ping82.com to substantially conform to or perform substantially in accordance with Ping82.com's specifications; or b) in the event that Ping82.com shall fail or be unable for any reason to correct any failure of Ping82.com to substantially conform to or perform substantially in accordance with Ping82.com's specifications, SUBSCRIBER may terminate this license and cease using Ping82.com, and Ping82.com will 
refund to User the full amount of any license fee paid to Ping82.com from the date any error is reported.

8. On-line Software Updates. Ping82.com may, when feasible, remotely update any version of Ping82.com, either with or without notice to SUBSCRIBERS or its USERS. Such updates may occur automatically or may occur pursuant to prompts which appear on SUBSCRIBERS or its USERS terminal screen during use of Ping82.com.  Any updated version of Ping82.com furnished to SUBSCRIBER by Ping82.com will be subject to all of the same terms and conditions of this license or other license agreement applicable to the version being replaced.  Ping82.com may send email communications and intersystem messages to SUBSCRIBERS explaining new features of the Ping82.com software and other news concerning Ping82.com

9. Ping82.com Help Desk. Throughout the term of this Agreement, Ping82.com will maintain e-mail support help desk to assist paying SUBSCRIBERS in their use of Ping82.com as posted on www.ping82.com.

10. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED ABOVE, Ping82.com, AND INFORMATION AVAILABLE THROUGH Ping82.com ARE FURNISHED BY Ping82.com AND ACCEPTED BY USER "AS IS" AND "AS AVAILABLE", WITHOUT ANY WARRANTY WHATSOEVER. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ARE SPECIFICALLY EXCLUDED AND DISCLAIMED. Ping82.com DOES NOT WARRANT THAT Ping82.com, OR INFORMATION OBTAINED THROUGH Ping82.com WILL MEET SUBSCRIBER'S REQUIREMENTS, THAT THE OPERATION OF Ping82.com OR Ping82.com WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL FAILURES OF THE Ping82.com TO SUBSTANTIALLY CONFORM TO OR PERFORM SUBSTANTIALLY IN ACCORDANCE WITH Ping82.com'S SPECIFICATIONS WILL BE CORRECTED. EXCEPT AS EXPRESSLY PROVIDED ABOVE AND IN SUCH WARRANTIES, IF ANY, AS MAY BE PROVIDED BY THIRD PARTY VENDORS OF EQUIPMENT OR SOFTWARE UTILIZED IN CONNECTION WITH Ping82.com, THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF Ping82.com, AND INFORMATION OBTAINED THROUGH Ping82.com IS WITH SUBSCRIBER.

11. LIMITATION OF Ping82.com LIABILITY. IN NO EVENT WILL Ping82.com BE LIABLE TO SUBSCRIBER OR ANY OTHER PERSON FOR ANY LOST PROFITS, LOST SAVINGS, LOST DATA, OR OTHER SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY INFORMATION, PRODUCT OR SERVICE FURNISHED OR TO BE FURNISHED BY Ping82.com UNDER THIS AGREEMENT OR THE USE THEREOF, EVEN IF Ping82.com HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, AND THE AGGREGATE LIABILITY OF Ping82.com UPON ANY CLAIMS HOWSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY INFORMATION, PRODUCTS OR SERVICES FURNISHED OR TO BE FURNISHED BY Ping82.com UNDER THIS AGREEMENT WILL IN ANY EVENT BE ABSOLUTELY LIMITED TO THE AMOUNT PAID TO Ping82.com BY SUBSCRIBER UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT NOTHING IN THIS AGREEMENT SHALL OPERATE TO RELIEVE Ping82.com FROM LIABILITY FOR ITS OWN WILLFUL OR WANTON RECKLESSNESS OR INTENTIONAL TORTS.

12. Throughout the Term of this agreement and for a period of one and one half years from the date of its termination, SUBSCRIBER, or any of its USERS, shall not develop a service or software that competes with, or is similar to, Ping82.com without the express written approval of Ping82.com directors.

13. Term and Termination. This Agreement shall be effective immediately and shall continue in effect on a month-to-month basis until terminated as provided herein. Either party may, at its election and in its sole discretion, terminate this Agreement as of the end of any calendar month by written notice to the other party at least thirty (30) days prior to the effective date of termination. SUBSCRIBER may, at its option, terminate this Agreement effective immediately by written notice to Ping82.com within thirty (30) days following the date on which access to Ping82.com first becomes available to SUBSCRIBER.  Ping82.com may, at any time, terminate this Agreement and/or terminate SUBSCRIBER'S access to any or all of Ping82.com without advance notice if SUBSCRIBER or anyone of its authorized USERS commit any violation of paragraphs 4 or 7 above. Upon termination of this Agreement, SUBSCRIBER will immediately cease and desist from using Ping82.com.

14. Ping82.com Access and Service Fees. SUBSCRIBER will pay to Ping82.com implementation charges as posted on www.ping82.com or as agreed to from time to time. Throughout the term of this Agreement, SUBSCRIBER will pay Ping82.com a monthly fee determined in accordance with fee schedules established by Ping82.com for Ping82.com from time to time as posted at www.ping82.com. In addition, SUBSCRIBER will pay Ping82.com at the rates specified in such fee schedules for file storage in any given month beyond the amount included in the basic subscribed services. SUBSCRIBER will also pay or reimburse Ping82.com for all sales, use, excise, and other taxes and governmental charges (other than income taxes) which Ping82.com is at any time required to pay or collect in connection with the furnishing of Ping82.com under this Agreement. SUBSCRIBER's credit card will be charged for the monthly fees and other charges to be paid under this Agreement. PLEASE NOTE credit card statements will indicate that charges are paid to Ping82.com  If SUBSCRIBER gives written notice of termination of this Agreement within thirty (30) days following the date on which access to Ping82.com first becomes available to SUBSCRIBER, Ping82.com INC. will credit SUBSCRIBER'S account for all installation and basic monthly service fees incurred up to the date on which such notice of termination is received except for customized web site installation charges, which shall not be refunded. Payment terms of all charges by Ping82.com to SUBSCRIBER under this Agreement are net thirty (30) days from date of charge. Any amount not paid when due will accrue a finance charge at the rate of two percent (2.5%) per month (34.49% per year), or the highest rate permitted by law, whichever is less, until fully paid.

15. Change in Monthly Fees. Ping82.com may change the amount of the monthly basic service and other fees to be paid by SUBSCRIBER by giving at least forty-five (45) days prior written notice thereof to paying SUBSCRIBER.

16. Financial Information. All financial information submitted via Ping82.com by SUBSCRIBER shall at no time be the responsibility of Ping82.com in any fashion whatsoever and may be shared with such financial institution as may be required.

17. Credit Card Information. Ping82.com does not store the credit card information of USERS UNLESS the SUBSCRIBER or USERS input credit card data into the auto billing feature within Ping82.com's recurring profiles module. SUBSCRIBERS, who enable auto billing and choose to store the credit card information of their USERS, are responsible for the security of that credit card information. When storing credit card information using the Ping82.com recurring profiles module SUBSCRIBERS acknowledge that they are aware of, and accept as satisfactory, Ping82.com's credit card protection procedures. To safeguard credit card information, Ping82.com encrypts all stored credit card numbers, uses a restrictive firewall to protect stored data and uses 128 bit SSL certificates to encrypt data during transfer between web browsers and the Ping82.com databases. When storing credit card information using the Ping82.com recurring profiles module, the responsibility for the security of any credit card information stored by Ping82.com on behalf of its SUBSCRIBERS is solely the responsibility of the Ping82.com SUBSCRIBER. Ping82.com is not responsible for the security of any credit data and SUBSCRIBERS indemnify and save harmless Ping82.com from any claim or demand resulting from the theft or loss of any credit card information. Credit card data is provided by the SUBSCRIBERS and their USERS of Ping82.com who are responsible for its protection.

18. Manner of Giving Notice. Any notice required or permitted under this Agreement may be by e-mail properly addressed to the intended recipient. Notice under paragraph 14 may also be given by posting bulletins on www.ping82.com.

19. Non-Waiver. The failure by either party at any time to enforce any of the provisions of this Agreement or any right or remedy available hereunder or at law or in equity, or to exercise any option herein provided, shall not constitute a waiver of such provision, right, remedy or option or in any way affect the validity of this Agreement. The waiver of any default by either party shall not be deemed a continuing waiver, but shall apply solely to the instance to 
which such waiver is directed.

20. Severability and Choice of Law. Every provision of this Agreement shall be construed, to the extent possible, so as to be valid and enforceable. If any provision of this Agreement so construed is held by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, such provision shall be deemed severed from this Agreement, and all other provisions shall remain in full force and effect. This Agreement shall in all respects be governed by and interpreted, construed and enforced in accordance with the laws applicable in the State of Hawaii, and the parties hereto irrevocable submit to the exclusive jurisdiction of the courts of the State of Hawaii.

22. Assignment and Binding Effect. Ping82.com may assign, delegate and/or otherwise transfer this Agreement or its rights and obligations hereunder to any person or entity. SUBSCRIBER may not assign, delegate or otherwise transfer this Agreement or any of its rights or obligations hereunder without the prior written consent of Ping82.com. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.

22. Entire Agreement. This Agreement sets forth the entire agreement and understanding between Ping82.com and SUBSCRIBER regarding the subject matter hereof and supersedes any prior representations, advertisements, statements, proposals, negotiations, discussions, understandings, or agreements regarding the same subject matter. This Agreement may not be modified or amended except by a writing signed by the party against whom the same is sought to be enforced.