Terms of Service Policy

1. Terms of Service

This Service Agreement (“Agreement”) applies to the purchase of any and all Services (“Services”) from MidnightBox.com, LLC (“Provider”), except if the Customer (“Client”) is being provided additional services which require Client to sign agreements specific to those services.

1.2 Acceptable Use

Client shall at all times adhere to Provider’s Acceptable Use Policy Agreement (“AUP”) located at http://www.midnightbox.com, as amended from time to time by Provider effective upon posting of the revised policy. Client agrees to use the Services in a manner consistent with any and all applicable laws. Client agrees to follow the AUP of any network accessed pursuant to this Agreement. In the event corrective active is taken due to a violation of the AUP, Provider shall not refund to Client any fees paid in advance of such corrective action.

1.3 Term

This Agreement shall be valid from the moment of access of the website or any services provided within it, and shall remain in effect until Client requests cancellation of their account and ceases to utilize services from Provider, collectively the Term (“Term”) of this Agreement.

1.4 Responsibilities

Client is responsible for use and confidentiality of Client’s account information. Provider will suspend access or change access to Client's account(s) within a reasonable time upon written notification by Client that his/her password(s) or information has been lost, stolen, or otherwise compromised.

1.5 Payment

During the term of this Agreement, Client shall pay the fees for the Services that are set forth on the Order Form. Such fees may include taxes, fees or assessments by governmental agencies and Provider shall have the right, at any time, to invoice to Client any new or increased taxes, fees, assessments or other charges imposed on or required to be collected by Provider. Invoices are due and payable upon receipt. All payments shall be made in U.S. currency. Use of Provider's Services shall constitute acceptance of Agreement and the rates, pricing and additional charges.

1.6 Disclaimer of Warranty

The Services are provided on an “as is, as available” basis. No warranties, expressed or implied, are made with respect to the Services, information or software therein. Provider shall in no way be liable for any monetary, incidental or consequential damages to Client including, but not limited to, losses of income due to disruption of service by Provider, or its Services. Under no circumstance shall Provider be liable to Client for Services for the period during which such damages occurred. Provider is not liable for the content or loss of any data transferred either to or from Client or stored by Client or any of Client’s clientele via Provider’s Services.

1.7 Limitation of Liability

Provider is not liable for, does not review, edit, censor, or take responsibility for any information its Clients may create. Provider reserves the right at all times to prohibit activities that damage its commercial reputation and goodwill. In no event will Providers liability for any damages, losses or causes of actions whether in contract or tort (including negligence or otherwise) exceed the actual dollar amount paid by Client for the Services which gave rise to such damages, losses and causes of actions during the thirty (30) day period prior to the date the damage or loss occurred or the cause of action arose.

1.8 Indemnification

Client will indemnify, save harmless, and defend Provider and all managers, members, directors, officers, employees, and agents of Provider (collectively "indemnified parties") from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative) and expenses (including but not limited to reasonable attorneys’ fees) arising out of or relating to the use of the Services by Client, including any violation of the AUP.

1.9 Force Majeure

Provider shall not be liable for failure or delay in performing its obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control, including, but not limited to, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Services.

1.10 Network Modification

Provider reserves the right to modify its network and facilities used to provide the Services. Provider shall use reasonable efforts to notify Client of any planned changes to Providers network or facilities that may adversely affect the Services provided hereunder.

2. Miscellaneous

2.1 Agreement Validity

In the event that this Agreement is in part found invalid by a court of competent jurisdiction, the remaining portions of this Agreement shall continue to be in full force and effect. This agreement shall represent the complete understanding of the parties hereto relating to the subject matter herein. Non­enforcement of any section of this Agreement by either party does not constitute a waiver or consent and both parties reserve the right to enforce this Agreement at their discretion. If any one or more paragraphs in this Agreement is found to be unenforceable or invalid, Client's and Provider's agreement on all other paragraphs shall remain valid.

The validity, interpretation, enforceability, and performance of this Agreement shall be governed by and construed in accordance with the laws of the State of New York.

2.2 Amendment or Waiver

Except for the Acceptable Use Policy Agreement or as otherwise provided herein, this Agreement may not be amended except upon the written consent of Client and Provider. No failure to exercise and no delay in exercising any right, remedy, or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, or power hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, or power provided herein or by law or in equity. The waiver by any party of the time for performance of any act or condition hereunder shall not constitute a waiver of the act or condition itself.

2.3 Assignability

The rights and benefits described in this Agreement are non-transferable. Use of the rights and benefits described in this Agreement is expressly limited to Client. Client may not assign this Agreement without the prior written consent of Provider.

2.4 Acceptance of Services

Acceptance of this agreement by Provider is in the absolute discretion of Provider. Use of Provider’s Services constitutes acceptance of this agreement by Client. By accepting this Agreement, Client warrants that signer has full authority to enter into the terms of this Agreement. If Client's representations concerning this article are fraudulent, then Provider has the right to immediately terminate all services and collect any damages caused as a result of the misrepresentation or warranty.

3. Acceptable Use

3.1 Acceptable Use Policy

This Acceptable Use Policy Agreement ("AUP") supplements the terms of the Service Agreement (“Agreement”), and is intended as a guide to the rights and obligations of the Customer (“Client”) when utilizing services provided by MidnightBox.com (“Provider”). By using these services, you agree to comply with this policy.

This AUP may be revised. Use of Provider’s services constitutes acceptance of this policy and any additional terms that may have been amended to it. The provisions of this Policy are intended as guidelines and are not meant to be exhaustive. Generally, use of Provider’s services for unacceptable uses or illegal activities of any kind is prohibited. Conduct that violates law, regulation, or the accepted norms of the Internet community, whether or not expressly mentioned in this policy, is prohibited.

Provider will be the sole arbiters as to what constitutes a violation of this provision, provided that all such determinations shall be made reasonably in good faith based on applicable law, regulation and the accepted norms of the Internet community.

3.2 Consequences of Violation

When Provider is made aware of violations to its AUP Provider will conduct an investigation. During which, Provider may restrict or suspend the Client’s services in order to prevent further possible unauthorized activity. Depending on the severity of the violation, Provider may, at its sole discretion, restrict, suspend, or terminate Client’s account and/or pursue other civil remedies. If such violation is a criminal offense, Provider will notify the appropriate law enforcement department of such violation. Provider does not issue service credits for any outages incurred through service disablement resulting from Policy violations.

3.3 The following are unacceptable uses:

1. Illegal Use

Provider’s servers may be used only for lawful purposes. Transmission, distribution or storage of any material in violation of any applicable law or regulation is prohibited.

2. Misuse of System Resources

It is a violation for anyone to post information or to include programs on the web space provided through Provider’s services which consume excessive bandwidth, CPU time or storage space.

3. System and Network Security

Violations of system or network security including, but not limited to the following: Unauthorized access, use, probe, or scan of a systems security or authentication measures, data or traffic. Interference with service to any user, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks, forging of any TCP-IP packet header or any part of the header information in an email or a newsgroup posting.

4. Abusive Language

Transmitting or posting defamatory, harassing, abusive, or threatening language about another user without their consent.

5. Spamming

Sending unsolicited bulk and/or commercial messages over the Internet (known as "spamming").

6. Obscene Speech or Materials

Using Provider’s network to advertise, transmit, store, post, display, or otherwise make available child pornography, obscene speech or material. Provider is required by law to notify law enforcement agencies when it becomes aware of the presence of child pornography on or being transmitted through Provider’s network.

7. Intellectual Property Violations

Engaging in any activity that infringes or misappropriates the intellectual property rights of others, including copyrights, trademarks, service marks, trade secrets, software piracy, and patents held by individuals, corporations, or other entities. Engaging in activity that violates privacy, publicity, or other personal rights of others. Provider is required by law to remove or block access to Client’s content upon receipt of a proper notice of copyright infringement. It is also Provider’s policy to terminate the privileges of Clients who commit repeat violations of copyright laws.

8. Distribution of Internet Viruses, Worms, Trojan Horses, or Other Destructive Activities

Distributing information regarding the creation of and sending Internet viruses, worms, Trojan horses, pinging, flooding, mail bombing, or denial of service attacks. Also, activities that disrupt the use of or interfere with the ability of others to effectively use the network or any connected network, system, service, or equipment.

9. Export Control Violations

Violations of export control laws including exporting encryption software over the Internet or otherwise, to points outside the United States.

10. Other Illegal Activities

Engaging in activities that are determined to be illegal, including advertising, transmitting, or otherwise making available ponzi schemes, pyramid schemes, fraudulently charging credit cards, and pirating software or other activities, whether lawful or unlawful, that Provider determines to be harmful to its subscribers, operations, reputation, goodwill, or Client relations.

11. Facilitating a Violation of this AUP

Advertising, transmitting, or otherwise making available any software, program, product, or service that is designed to violate this AUP, which includes the facilitation of the means to spam, initiation of pinging, flooding, mail bombing, denial of service attacks, and piracy of software.