1. Provision of Service: Acceptance of this TOS Agreement and Acceptance of FDC’s Acceptable Use Policy:

FDC’s provision of service to Subscriber, and Subscriber’s acceptance and use of said service, constitute Subscriber’s acceptance of, and agreement to, this TOS Agreement as well as Subscriber’s acceptance of, and agreement to, FDC's Acceptable Use Policy (“FDC’S AUP”) -- which is herewith made a part of this TOS Agreement. This TOS Agreement, including FDC’S AUP, constitutes the entire agreement between the parties, and supersedes any prior agreements between the parties.

2. Cancellation of Service:

FDC reserves the right to cancel this TOS Agreement and to permanently disconnect the service that FDC provides to Subscriber hereunder at anytime without further obligation. Subscriber may cancel this TOS Agreement and the service that FDC provides to Subscriber hereunder by requesting cancellation via opening a help ticket through the helpdesk at http://crm.fdcservers.net  at least fourteen (14) days prior to Subscriber’s next monthly billing date. FDC will not honor notice of cancellation by any other means of communication. Subscriber must be current on all payments and must have all account information available at the time of such request for said requested cancellation to become effective. It is Subscriber’s responsibility to separately confirm that FDC has timely received notice of requested cancellation, and Subscriber must make arrangements to pick up any server computer that it owns for removal from FDC’s facility.

3. Disconnection of Service:

1. Not by way of limitation of FDC’s right to, at any time for any reason, cancel this TOS Agreement and permanently disconnect the service that FDC provides to Subscriber, FDC also reserves the right to temporarily disconnect (suspend) the service that FDC provides to Subscriber (or any one of them, if Subscriber has more than one account or server):

   • For Subscriber’s failure to timely pay any fee or amount due to FDC, in which case FDC will first send Subscriber an email indicating that Subscriber’s account is overdue and advising Subscriber that the service that FDC provides to Subscriber may be terminated if payment is not made within 24 hours; and/or

   • If FDC determines, in its sole judgment, that Subscriber is in violation of this TOS Agreement (which includes FDC’s AUP), and FDC believes that Subscriber can timely and appropriately cure said violation. If, in FDC’s sole discretion, a potential violation is detected, the service (including all services on all server computers of Subscriber, if Subscriber uses more than one) that FDC provides to Subscriber may be terminated, without notice to Subscriber, until FDC’s investigation is complete, which investigation FDC shall attempt to complete within a reasonable time period.

Subscriber will not be credited, under any circumstances, for any time that the service that FDC provides to Subscriber is suspended, interrupted or terminated.

4. FDC Not Obligated To Review Activities or Notify of Violations:

FDC is under no obligation to review Subscriber's and/or any of Subscriber’s Sub-User’s (the term “Subscriber’s Sub-User” is defined below) activities to determine if a violation of this TOS Agreement (which includes FDC’s AUP) has occurred. Further, FDC does not assume any responsibility by virtue of this TOS Agreement (which includes FDC’s AUP) to monitor, enforce or police Internet-related activities or to notify Subscriber of any actual or suspected violations.

5. Amendment:

FDC reserves the right to amend, and may amend, from time to time, within its sole discretion, the terms and conditions of this TOS Agreement (including FDC’s AUP). FDC will provide notice of such amendment(s) by posting such amendment(s) on FDC’s website at http://www.fdcservers.net/vbulletin/, and Subscriber’s use of FDC’s services after FDC posts such amendment(s) on its website shall constitute Subscriber's acceptance of any/all such amendments. Amendment(s) shall not constitute grounds for Subscriber’s early cancellation of this TOS Agreement or the service, nor grounds for Subscriber’s non-payment for the service that FDC provides to Subscriber after the effective date of such amendment(s), and Subscriber shall continue to be bound by the terms and conditions of this TOS Agreement, as amended, for any service provided by FDC to Subscriber thereafter. It is Subscriber’s responsibility to review, from time to time, this TOS Agreement (including FDC’s AUP), as published on FDC’s website, for any amendment(s).

6. Assignment:

Subscriber may not transfer or assign this TOS Agreement without the prior written consent of FDC. FDC may transfer and assign this TOS Agreement, the Service and all of FDC’s rights, titles and interests thereunder at any time without consent from or notice to Subscriber.

7. Waiver:

Waiver by FDC of Subscriber’s breach of any term or condition of this TOS Agreement (including FDC’s AUP) shall not operate as or be construed as a continuing or subsequent waiver thereof or as a waiver of any breach of any other term or condition of this TOS Agreement (including FDC’s AUP).

8. Compliance with law:

Inasmuch as the service that FDC provides to Subscriber is controlled and operated by FDC from its facilities in the United States, Subscriber shall comply with all U.S. local, state, federal and national laws, statutes, ordinances and regulations that apply to Subscriber’s use of the service that FDC provides to Subscriber, as well as with all laws in all other jurisdictions that apply to Subscriber’s use of the service that FDC provides to Subscriber.

9. Choice of Law / Jurisdiction / Venue / Statute of Limitations:

This TOS Agreement shall be construed in all respects in accordance with the laws of the state of Illinois applicable to contracts enforceable in that state. By entering into this TOS Agreement and accepting and using FDC’s services hereunder, Subscriber submits to jurisdiction and venue in the courts of Cook County, Illinois, for any dispute(s) related to or rising out of this TOS Agreement. Notwithstanding any contrary provision of law, any claim or cause of action arising out of this TOS Agreement and/or related to the service that FDC provides, or is to provide, to Subscriber must be filed within one (1) year after such claim or cause of action arose or be forever barred.

10. Responsibilities:

1. Subscriber Shall Defend and Indemnify FDC: Subscriber shall fully defend, indemnify, pay and hold harmless FDC and its managers, members, employees, affiliates, attorneys, agents, contractors and licensors (such FDC related parties collectively referred to under this Section 10.A. as “FDC-related party”) for any Subscriber violation(s) of this TOS Agreement (which includes FDC’s AUP) and for any violation(s) by a sub-subscriber of, client of, customer of, reseller of, user of, sub-user of, or similar party related to, Subscriber (collectively referred to as a “Subscriber’s Sub-User”), that results in any loss, damage, cost or expense to FDC or an FDC-related party, or in any claim made or threatened against FDC or an FDC-related party by any third-party. If FDC or an FDC-related party is sued (or if a suit is threatened against FDC or an FDC-related party) because of Subscriber's or a Subscriber’s Sub-User’s act or omission, Subscriber shall pay any and all damages awarded against FDC and any FDC-related party immediately upon such award (whether or not any appeal is available/taken), plus any and all of FDC’s and any FDC-related party’s expenses and costs (including FDC’s and any FDC-related party’s reasonable attorneys’ fees) related thereto;

2. FDC Not Liable: The service that FDC provides to, or is to provide to, Subscriber is provided on an “as is” and “as available” basis, and Subscriber’s use of said service is at Subscriber’s sole risk. In no case shall FDC or any of its managers, members, employees, affiliates, attorneys, agents, contractors or licensors be liable for any direct, indirect, incidental, punitive, exemplary, special or consequential damages, losses, costs or expenses, including, but not limited to, loss of profits, loss of data, loss or damage to goodwill, or loss of use of data or other intangible losses, or for any claim(s) related thereto, even if said party has been advised of the possibility of such damages, losses, costs, expenses or claims, arising from or related to:

   • Subscriber’s or Subscriber’s Sub-Users’ use or inability to use the service (whether from Service Faults or otherwise) that FDC provides to, or is to provide to, Subscriber;

   • Any destruction, damage, taking, unavailability or other loss of Subscriber’s or any Subscriber’s Sub-User’s system, server or data;

   • The cost to procure any substitute service;

   • Any unauthorized access or use of Subscriber’s account; or

   • Any third party conduct or other matter relating to the service;

3. Content Responsibility: FDC takes no responsibility or accountability for, and Subscriber is entirely responsible and accountable for, any and all Subscriber and third-party data, information and content transmitted by (via email, uploading, posting or otherwise), stored on, inputted to/through, linked to/through and/or served by, Subscriber’s server computer (or any server computer internally assigned to Subscriber) at FDC’s premises and/or using the service that FDC provides to Subscriber;

4. Subscriber’s Responsibility to Enforce: It is Subscriber’s responsibility to ensure that Subscriber and all of Subscriber’s Sub-Users continuously adhere to the terms and conditions contained in this TOS Agreement (including FDC’s AUP), and Subscriber is, and will be held, responsible for Subscriber’s acts and omissions and for the acts and omissions of Subscriber’s Sub-Users related thereto. It is in Subscriber’s best interest to implement a similar policy of acceptable use and compliance among Subscriber’s Sub-Users;

5. Subscriber’s Network / Security: Subscriber is solely responsible for ensuring that its network and the network(s) of Subscriber’s Sub-User(s) are configured in a secure manner. Subscriber is solely responsible for any intrusions into, or security breaches of, any of its server computers, networks or systems. Subscriber is solely responsible and accountable for, and FDC shall not be responsible or accountable for, any/all activities that occur on or through Subscriber’s service computers, networks and systems, including any and all acts or omissions by, or attributable to, any third party, using the service that FDC provides to Subscriber;

6. Subscriber’s Responsibility to Backup System/Data – Deletion of System/Data: FDC is not responsible for, and Subscriber is solely responsible for, backing up Subscriber’s system/data, including any/all system/data of any Subscriber’s Sub-User, related to Subscriber’s server computer (or any server computer internally assigned to Subscriber) at FDC’s premises and/or to the service that FDC provides to Subscriber. Any server computer owned by Subscriber on FDC’s premises or otherwise under FDC’s possession or control will be considered abandoned and forfeited thirty (30) days after cancellation of this TOS Agreement for non-payment, at which time, FDC will delete any and all Subscriber and Subscriber’s Sub-User system/data. For any server computer not owned by Subscriber but that is or may be internally assigned to Subscriber, FDC will delete any and all Subscriber and Subscriber’s Sub-User system/data immediately upon cancellation of this TOS Agreement for non-payment.;

7. Subscriber’s Responsibility To Insure: FDC is not responsible for, and Subscriber is solely responsible for, fully insuring Subscriber’s and Subscriber’s Sub-Users’ system/data against destruction, damage, taking, unavailability or other loss, and FDC is not responsible for, and Subscriber is solely responsible for, fully insuring any/all server computers, components and equipment owned or controlled by Subscriber against loss and damage during shipment, handling, placement and use, whether said server computer/equipment is in FDC’s possession or control or otherwise;

8. Subscriber’s Responsibility For Server/Equipment: Subscriber is solely responsible for packaging and removing from FDC’s premises/control any/all servers and equipment owned or controlled by Subscriber. Subscriber shall pay FDC a $20.00 handling fee plus all shipping costs per package for any server/equipment which is shipped The Subscriber is responsible for insuring any/all shipments. Any server or equipment not removed within 30 days after cancellation of this TOS Agreement for any reason will be considered abandoned and forfeited.

11. Subscriber Contact Information, Updates & ID:

Subscriber shall, at http://crm.fdcservers.net, provide FDC with, and shall update FDC immediately upon any change(s) with, accurate, current and complete contact information (including email, fax, telephone and street address contacts) so that FDC may register Subscriber, charge payments to Subscriber and otherwise contact Subscriber as may be required from time to time in the course of this TOS Agreement. In addition, Subscriber agrees to provide photo identification to FDC prior to Subscriber’s preliminary visit, if any, to FDC’s data center.

12. Age/ Legal Authority:

If Subscriber is an individual, Subscriber must be eighteen (18) years of age or older in order to enter into this TOS Agreement to subscribe to the service that FDC provides to Subscriber, and Subscriber herewith assures FDC that Subscriber meets said age requirement. If Subscriber is an entity, Subscriber herewith assures FDC that it has all the legal authority necessary to enter into this TOS Agreement to subscribe to the service FDC provides to Subscriber.

13. Payment Information:

1. Service Rates: The nature of the service that FDC provides to Subscriber, and the rates and fees thereof, have been communicated to Subscriber by FDC. FDC may amend its rates and fees from time to time, at FDC’s discretion, by posting said change(s) on FDC’s website at http://www.fdcservers.net/vbulletin/, which rate change shall become effective as outlined in said posting;

2. Payment: FDC may charge Subscriber a one-time, pre-agreed set-up fee before FDC establishes any service for Subscriber. Subscriber shall thereafter pay, on each monthly anniversary date thereafter, an ongoing service charge in advance for FDC’s continued provision of the service that FDC provides to Subscriber. Subscriber agrees that FDC may automatically charge Subscriber’s credit card each month, and may process Subscriber’s payment as early as five (5) days before the due date, to ensure that FDC receives payment on or before the due date;

3. Invoicing: FDC does not send out invoices automatically. If Subscriber requires an invoice he may log into his account and obtain an invoice.

4. Refunds and Disputes: All payments made to FDC by Subscriber or on Subscriber’s behalf are nonrefundable – including the one-time set-up fee, if any, as well as any/all subsequent monthly charges (regardless of usage). Overcharges or billing disputes must be reported to FDC within thirty (30) days of occurrence, otherwise Subscriber shall have waived all claims related thereto. If Subscriber disputes a charge to its credit card issuer, which charge FDC deems, in its sole discretion, to be valid under the terms and conditions of this TOS Agreement, Subscriber shall pay FDC, in addition to said disputed charge, an Administrative Fee of not less than $50.00 and not more than $150.00;

5. Payment Declination/Rejection Charge: Should Subscriber’s credit card or any payment be declined or rejected for any reason, FDC may charge Subscriber a $15.00 administrative fee per occurrence;

6. Additional Charges for Failure to Timely Pay: Without limiting FDC’s right to, at any time for any reason, cancel this TOS Agreement and permanently disconnect the service that FDC provides to Subscriber, should FDC suspend the service that FDC provides to Subscriber because of Subscriber’s failure to timely pay any fee or amount due to FDC, Subscriber may be required to pay FDC, in addition to any fees and amounts due a $20.00 late fee.. Suspension of service does not relieve Subscriber of any responsibilities.

14. Rates / Charges / Service Plans:

1. 1Gbit Un-metered Service Plan: Each server is connected via private (non-shared) 1Gbit port to the FDC 101 Gbit backbone shared by all servers subscribed to FDC’s un-metered service plans. The bandwidth is NOT dedicated. Servers on the 1Gbit un-metered service plan can expect average 30000GB-50000GB/month throughput on outbound transfer (from the server to the internet) and up to 300TB/month throughput on inbound transfer (from the internet to the server);

2. 100Mbit Un-metered Service Plan: Each server is connected via private (non-shared) 100Mbit port to the FDC 101 Gbit backbone shared by all servers subscribed to FDC’s un-metered service plans. The bandwidth is NOT dedicated. Servers on the 100Mbit un-metered service plan can expect average 15-20TB/month (15000-20000GB/month) throughput on outbound transfer (from the server to the internet) and up to 30TB/month throughput on inbound transfer (from the internet to the server);

3. Dedicated Bandwidth: Dedicated bandwidth, if not over-subscribed, is available at $4-$15/month/Mbit depending on commitment.

15. Un-metered and Burstable Bandwidth Usage:

FDC will pro-actively monitor Subscriber's bandwidth/ backbone usage to ensure that bandwidth resources are shared equally among all FDC subscribers. FDC reserves the right to take corrective action if a plan Subscriber's usage adversely impacts other subscribers or the network. FDC will never charge any overage fees regardless of Subscriber's bandwidth usage. However continuous bursting for several hours a day at the same time of day repeatedly may be considered abusive. FDC may adjust Subscriber's port so the bandwidth usage reflects the expected usage described Paragraph 14 A. B. C & D. above.

16. Service and Support:

1. Support & Support Boundaries: Within FDC’s field of service and ability, FDC offers 24 hours/day x 7 days/week technical support to Subscriber, except during a few holidays and company meetings when we temporarily close our facility. Subscriber’s server computer(s) housed at FDC’s facility is(are) unmanaged, and FDC offers only that the service provided by FDC to Subscriber’s server computer(s) is online and remotely accessible. FDC does not offer technical support for application-specific issues, and FDC shall not provide technical support to Subscriber’s Sub-Users. Subscriber should contact FDC by opening a help ticket with the support desk for technical assistance at http://crm.fdcservers.net. In the event FDC needs to ship out of FDC’s premises any failed component of a server owned or controlled by Subscriber for any reason, a $20.00 handling fee per shipment plus all shipping costs will be applied;
   

2. Service Faults / No FDC Liability / No Warranty: FDC does not guarantee that the service that FDC provides, or is to provide, to Subscriber is or will be free from errors, omissions, corruption, attack, viruses, interference, loss, hacking, security intrusion, delays, non-delivery, wrong delivery or any other causes of interruption or damage (collectively “Service Faults”). As a reminder of, and not as a limitation of, FDC’s limitation of liability under Section 10.B. above, in no case shall FDC or any of its managers, members, employees, affiliates, attorneys, agents, contractors or licensors be liable for any direct, indirect, incidental, punitive, exemplary, special or consequential damages, losses, costs or expenses, including, but not limited to, loss of profits, loss of data, loss or damage to goodwill, or loss of use of data or other intangible losses, or for any claim(s) related thereto, even if said party has been advised of the possibility of such damages, losses, costs, expenses or claims, arising from or related to the following:
   

i) Subscriber’s or Subscriber’s Sub-Users’ use or inability to use the service (whether from Service Faults or otherwise) that FDC provides to, or is to provide to, Subscriber,

ii) Any destruction, damage, taking, unavailability or other loss of Subscriber’s or any Subscriber’s Sub-User’s system, server or data,

iii) The cost to procure any substitute service,

iv) Any unauthorized access or use of Subscriber’s account or

v) Any third-party conduct or other matter relating to the service. .

FDC AND ITS MANAGERS, MEMBERS, EMPLOYEES, AFFILIATES, ATTORNEYS, AGENTS, CONTRACTORS AND LICENSORS HEREWITH EXPRESSLY DISCLAIM ANY AND ALL EXPRESS AND IMPLIED WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

NO REQUEST OR ADVICE FROM SUBSCRIBER TO FDC, IN ANY FORM OF MEDIA, SHALL CREATE ANY WARRANTY.

SUBSCRIBER IS SOLELY REPONSIBLE FOR ANY DAMAGE TO SUBSCRIBER’S NETWORK AND SYSTEM AND FOR ANY LOSSES THAT RESULT FROM SUBSCRIBER’S USE OF, OR INABILITY TO USE, THE SERVICE THAT FDC PROVIDES, OR IS TO PROVIDE, TO SUBSCRIBER;

3. Facility Access: Visits to FDC’s facility must be scheduled at least twenty-four (24) hours prior to the visit. Should Subscriber need emergency access to Subscriber’s server computer, Subscriber must contact FDC technical support and request access at least fifteen (15) minutes prior to the emergency visit. Subscriber shall pay any/all related charges (such as for a security pass, property pass, time and assistance provided by FDC, etc.). and Subscriber shall submit a photo ID for FDC’s records prior to Subscriber’s initial visit to FDC’s facility. Guided tours for prospective clients (non-subscribers) are permitted, at the sole discretion of FDC, only during regular business hours, Monday-Friday, and should be scheduled at least twenty-four (24) hours in advance;

4. IP Address Allocation / Ownership: If FDC assigns Subscriber an Internet Protocol (“IP”) address and/or number(s) for Subscriber's use, the right to use that IP address/number shall belong solely to FDC, and Subscriber shall have no right to use that IP address/number except as permitted by FDC in its sole discretion in connection with the services provided by FDC to Subscriber during the term of this TOS Agreement. FDC shall maintain and control ownership of all IP addresses and numbers that may be assigned to Subscriber by FDC, and FDC reserves the right to change or remove any and all such IP addresses/numbers, in its sole and absolute discretion. FDC’s allocation of IP addresses/numbers is limited by the policies, as they exist from time to time, of the American Registry for Internet Numbers (“ARIN”), including policies providing that the use of IP addresses or numbers for IP-based virtual hosts are not acceptable as justification for new IP addresses or numbers. Pursuant to ARIN’s policies, as they exist from time to time, Subscriber must use name-based hosting whenever possible. FDC will periodically review IP address usage, and if FDC finds that Subscriber and/or Subscriber’s Sub-Users are using IP addresses or numbers where name-based hosting could be used, FDC will revoke authorization for the use of those IP addresses/numbers. All IP addresses/numbers that are allocated to Subscriber must be utilized within forty-eight (48) hours of allocation, otherwise FDC may retract said unused IP address or number without prior notification to Subscriber.

17. Unauthorized Use of Account:

Subscriber shall not reveal Subscriber’s account information to anyone, Subscriber shall protect and maintain the confidentiality and security of Subscriber’s account, Subscriber shall not use anyone else’s account, and Subscriber shall immediately notify FDC of any unauthorized use of Subscriber’s account or any other breach of security. Subscriber is solely responsible and accountable for, and FDC shall not be responsible or accountable for, any/all activities that occur on or through Subscriber’s account, including any and all acts or omissions by, or attributable to, any third party, using the service that FDC provides to Subscriber.

18. Disclosure of Subscriber’s Information to Law Enforcement and to Third Parties:

Subscriber herewith acknowledges and agrees that FDC may disclose any and all personal information, including, but not limited to, Subscriber and Subscriber’s Sub-Users names, postal and e-mail addresses, telephone and facsimile numbers, social security and federal employer identification numbers, information and identifiers that permit FDC to contact an individual or entity, business, billing and payment information, assigned IP addresses/numbers, account history, account use and other information, without consent or notification to Subscriber or Subscriber’s Sub-User: 1) where release is required by law (for example, a subpoena) or regulation or is requested by a government agency; 2) where FDC’s information indicates that Subscriber or Subscriber’s Sub-User may be engaged in fraudulent activity or other deceptive practices that a governmental agency should be made aware of; 3) to appropriate persons, where Subscriber’s or Subscriber’s Sub-User’s communications or use suggests possible harm to others; or 4) in similar circumstances.  In addition, FDC may share Subscriber’s and Subscriber’s Sub-Users’ personal information with third parties as outlined in FDC’s privacy policy existing from time to time, and, as may be allowed by ARIN policies from time to time, FDC will provide any third party with Subscriber contact information (including the name, telephone number, email address and other contact information of Subscriber). Since FDC will apply the terms of this section to any/all of Subscriber’s Sub-Users, Subscriber shall notify all of Subscriber’s Sub-Users of these terms.

19. SPAM / Unsolicited Commercial Email (UCE) / Unsolicited Bulk Email (UBE):