Last Updated : August 20, 2007

Blue Gravity Communications, Inc. (herein referred to as "BGCI") is a New Jersey Corporation whose primary business is to facilitate communication between users and computer networks commonly referred to collectively as "the Internet."

By hosting your web site(s) with Blue Gravity Communications, Inc. (herein referred to as "BGCI"), you (herein referred to as "Client") understand and agree to these Terms and Conditions. Clients who violate these Terms and Conditions are subject to account suspension and/or termination, with or without notice. If for any reason you do not agree with the Terms and Conditions or policies shown on this page, DISCONTINUE USE OF YOUR ACCOUNT AND/OR SERVICE IMMEDIATELY.

BGCI reserves the right to modify these policies at any time, effective upon posting the revised document on our web site @ http://www.bluegravity.com. Clients should check this URL frequently to ensure they are familiar with any changes and/or updates. Clients who have signed and returned a "Dedicated / CoLocation Service Agreement" are bound by the Terms of Service as outlined in their individual agreements.

• BGCI SHALL PROVIDE SERVICE, SOFTWARE, AND EQUIPMENT AS SET FORTH IN THIS AGREEMENT. BGCI DOES NOT WARRANT THAT SERVICE, SOFTWARE, OR EQUIPMENT SHALL BE INTERRUPTED OR ERROR FREE OR PROVIDE ANY SECURITY OR PRIVACY FOR THE CUSTOMER'S COMPUTER NETWORK OR ANY DATA, OR THAT THE INFORMATION AVAILABLE AND/OR ACCESSED THROUGH THE INTERNET SHALL BE ACCURATE, CORRECT, APPROPRIATE FOR THE CUSTOMER'S NEEDS, FREE FROM VIRUSES OR OTHER DISABLING CODES, OR THAT SUCH INFORMATION SHALL NOT INFRINGE UPON ANY PROPRIETARY OR OTHER RIGHTS OF OTHERS. THE CUSTOMER'S USE OF THE INTERNET AND ANY INFORMATION AVAILABLE AND/OR ACCESSED THROUGH THE INTERNET SHALL BE AT THE CUSTOMER'S SOLE RISK. OTHER THAN ANY EXPRESS WARRANTIES CONTAINED IN THIS AGREEMENT, BGCI DISCLAIMS ALL WARRANTIES, EITHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE CUSTOMER HEREBY REPRESENTS AND WARRANTS THAT ITS USE OF THE BGCI SERVICE SHALL NOT VIOLATE OR INFRINGE UPON ANY PROPRIETARY OR OTHER RIGHTS OF OTHERS, BE ABUSIVE, PROFANE OR OTHERWISE OFFENSIVE, OR VIOLATE ANY LAWS OR REGULATIONS. THE CUSTOMER SHALL NOT REPRESENT TO ANY THIRD PARTY THAT BGCI HAS MADE ANY WARRANTY OR REPRESENTATION OF ANY KIND WITH RESPECT TO THE BGCI SERVICE, SOFTWARE, EQUIPMENT, OR THE INTERNET. BGCI SHALL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES SUFFERED BY CLIENT IN CONNECTION WITH USE OF OR INABILITY TO USE BGCI SERVICE OR SERVICES INCLUDING, BUT NOT LIMITED TO, DAMAGES FROM LOSS OF DATA RESULTING FROM DELAYS, NON-DELIVERIES, MIS-DELIVERIES, OR SERVICE INTERRUPTIONS. UNDER NO CIRCUMSTANCES SHALL BGCI'S AGGREGATE LIABILITY EXCEED THE AMOUNT PAID BY CLIENT FOR BGCI SERVICES. INDIRECT OR ATTEMPTED VIOLATIONS OF THESE POLICIES, AND ACTUAL OR ATTEMPTED VIOLATIONS BY A THIRD PARTY ON BEHALF OF A BGCI CLIENT, SHALL BE CONSIDERED VIOLATIONS OF THE POLICY BY CLIENT.
  
  
• The initial term of this contract shall commence immediately upon installation and setup of Client web site(s). This contract will be renewed on a monthly basis until terminated by Client or BGCI.
  
  
• BGCI reserves to right to change service, including, but not limited to, price structure, access procedures, hours of operation, menu structures, commands, documentation, vendors and services offered, at any time, with or without notice.
  
  
• BGCI reserves the right to refuse, suspend or cancel service to a Client at any time and without notice, for any reason, including, but not limited to, refusal or failure to pay for services provided or by sole judgment of BGCI that the Client may be performing activities harmful to BGCI or its Clients, employees, vendors, business relationships or any other users of the Internet.
  
  

• Billing cycles are monthly, beginning on the first day of each month and ending on the last day of each month. Clients will be invoiced via Email ten (10) calendar days before the invoice is considered past due. In the event a Client does not receive an invoice, it is the responsibility of Client to contact BGCI and request payment information or a duplicate invoice. Payment will be considered late after the past due date and account and/or web site access may be suspended at BGCI's discretion. Suspended accounts are subject to a reconnection fee.
  
  
• Service may be canceled by BGCI or Client without penalty. Upon cancellation, unpaid invoices and/or overdue balances are to be paid immediately.
  
  

• BGCI agrees to defend or settle any claim against Client and to pay all damages that a court may award against Client in any suit that alleges a service infringes any patent, trademark, copyright or trade secret, except where the claim or suit arises out of or results from: Client's content; modifications to the service or combinations of the service with other services or products, by Client or others; BGCI's adherence to Client's written agreements; or, use of service in violation of this agreement. Client agrees to defend or settle any claim against BGCI and to pay all damages that a court may award against BGCI in any suit that alleges a service infringes any patent, trademark, copyright or trade secret, due to any of the exceptions in the preceding sentence. Whenever BGCI is responsible, BGCI may at its option either procure the right for Client to continue using, or may replace or modify the alleged infringing service so that the service becomes noninfringing, but if those alternatives are not reasonably achievable, BGCI may terminate the affected service without liability. Client shall defend, indemnify and hold harmless BGCI from and against all damages arising out of third party claims relating to Client's use of service. The indemnified party under this section: (i) must notify the other party in writing promptly upon learning of any claim or suit for which indemnification may be sought, provided that failure to do so shall have no effect except to the extent the other party is prejudiced thereby; (ii) shall have the right to participate in such defense or settlement with its own counsel and at its sole expense, but the other party shall have control of the defense or settlement; and (iii) shall reasonably cooperate with the defense.
  
  

• BGCI will not release Client's subscriber information to any third party except upon presentation of a valid court order of a government or entity within our jurisdiction. Client agrees that BGCI has final judgment as to the validity of any court order or subpoena considered to be proper and final.
  
  
• The Client is responsible for all use of the Client's account(s). BGCI may change access passwords if Client's password is stolen, lost or otherwise compromised. In addition, Client's password and/or file permissions may be changed if BGCI believes it compromises server security. BGCI is not liable for any damages, usage, and/or charges incurred due to compromised and/or abused accounts.
  
  
• BGCI is not responsible for Client files residing on BGCI servers. The Client is responsible for independent backup of the Client's data. BGCI reserves the right to delete any of Client's personal files after one or both parties terminate the service agreement between BGCI and the Client.
  
  
• BGCI reserves the right to monitor any and all communications through BGCI network hardware and/or computer systems. Client agrees that BGCI is not considered a secure communications medium, and that no such privacy is guaranteed. It may become necessary for BGCI to examine server logs, Email, and/or Client files to determine if violations of our Acceptable Use Policy have taken place.
  
  

• Client agrees to use the service in a manner consistent with all applicable laws and regulations of the United States of America, the State of New Jersey, and the Client's locality. Reproduction or transmission of any material in violation of any local, state, U.S., or international law or regulation is prohibited. Client agrees that any material to be reproduced or transmitted on BGCI's service through Client's account does not violate or infringe any copyright, trademark, patent, statutory, common law or proprietary rights of others. Software intended to facilitate any such violations or infringements may not be stored on BGCI servers. Client shall defend, indemnify and hold harmless BGCI from and against any claims, liabilities and expenses, including attorney fees, resulting from Client's use of BGCI service or a Client's account in an unlawful manner or otherwise in violation of or contrary to the Clients agreement with BGCI or BGCI's Acceptable Use Policies. At BGCI's sole discretion, BGCI may revoke Client access to BGCI services and/or servers for inappropriate usage.
  
  
• Violations of system and/or network security are prohibited, and may result in criminal and civil liability. BGCI will investigate incidents involving such violations and may involve and will cooperate with law enforcement if a criminal violation is suspected. Examples of system or network security violations include, without limitation, the following:
  
  
  • Unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of BGCI.
    
    
  • Unauthorized monitoring of data or traffic on any network or system without express authorization of BGCI.
    
    
  • Interference with service to any user, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system, denial of service attacks, and broadcast attacks.
    
    
  • Forging of any TCP-IP packet header or any part of the header information in an Email or a newsgroup posting.
    
    
• Advertising, transmitting, or otherwise making available any software, program, product, or service that is designed to violate this AUP or the AUP of any other Internet Service Provider, which includes, but is not limited to, the facilitation of the means to send Email SPAM, initiation of pinging, flooding, mail-bombing, denial of service attacks, and piracy of software.
  
  

• BGCI has a ZERO TOLERANCE policy for Customers found to be in violation of our Terms and Conditions / Acceptable Use Policy with regards Section 6. 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 or the AUP of any other Internet Service Provider, which includes, but is not limited to, the facilitation of the means to SPAM.
  
  
• Sending unsolicited mail messages, including, without limitation, commercial advertising and informational announcements without a mailing list unsubscribe link, is explicitly prohibited. Using another mail server to promote, advertise, or direct traffic to any site hosted on the BGCI Network is also considered SPAM, and a violation of our AUP. Posting the same or similar message to one or more newsgroups (excessive cross-posting or multiple-posting, also known as "SPAM") is explicitly prohibited.
  
  
• Client's may send mailings, newsletters, promotional advertising, and web site updates to subscribers who have confirmed their Email address through a VERIFIED OPT-IN (also known as DOUBLE OPT-IN) process. All messages must include a visible unsubscribe link to OPT-OUT of future mailings and properly identify the subscriber's Email address. Mailing lists should monitor bounced messages, and remove those Email addresses from further mailings.
  
  See also: http://www.spamhaus.org/mailinglists.html
  
  
• AS REQUIRED BY THE FEDERAL CAN-SPAM ACT, ALL MAILINGS MUST INCLUDE THE FOLLOWING INFORMATION CLEARLY VISIBLE AT THE TOP OR BOTTOM OF EVERY MESSAGE SENT.
  
  

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  We can be reached by regular mail at the following address:
  
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• Client's who violate this section of our AUP will have Email privileges suspended, and service may be terminated. These violations include, without limitation, omitting subscriber / unsubscribe information, non-compliance with Federal CAN-SPAM requirements, failure to verify subscriber Email addresses, failure to remove a subscriber who has OPTED-OUT of a mailing list, and/or inadequate tracking of subscriber information (such as IP addresses, and date/time stamps).
  
  

• BGCI accounts may limit bandwidth, CPU and/or disk space utilization for certain hosting packages. BGCI reserves the right to determine what constitutes excessive bandwidth, CPU, and/or disk space utilization. In order to maintain a high level of service for all clients, BGCI may determine that a Client is exceeding the bandwidth, CPU and/or disk space utilization limitation for the Client's hosting package. In the event an account exceeds such limitations, the Client will be notified by E-mail and has 24 hours after such notification to upgrade their hosting package or resolve excessive account activity issues. If excessive bandwidth, CPU and/or disk space utilization is determined by BGCI to adversely affect BGCI's ability to provide service for all clients, immediate action may be taken by BGCI. In such event, the Client will be notified by E-mail.
  
  

Last Updated : August 20, 2007

• BGCI guarantees that the network will be available 99.99% of the time in a given month, excluding scheduled maintenance. BGCI will refund the customer 5% of the monthly fee for each 30 minutes of downtime (up to 50% of customer's monthly fee). Network uptime includes functioning of all network infrastructure including routers, switches and cabling, but does not include services or software running on your server. Network downtime exists when a particular customer is unable to transmit and receive data and BGCI records such failure. Network downtime is measured from the time the failure occurs to the time the server is once again able to transmit and receive data.
  
  

• BGCI guarantees that the critical infrastructure systems, including power and HVAC, will be available 99.99% of the time in a given month, excluding scheduled maintenance. BGCI will refund the customer 5% of the monthly fee for each 30 minutes of downtime (up to 50% of customer's monthly fee). Critical infrastructure includes functioning of all power and HVAC infrastructure including UPSs, PDUs and cabling, but does not include the power supplies on customers' servers. Infrastructure downtime exists when a particular server is shut down due to power or heat problems and BGCI records such failure. Infrastructure downtime is measured from the time the failure occurs to the time the problem is resolved and the server is powered back on.
  
  

• BGCI guarantees the functioning of all leased hardware components and will replace any failed component at no cost to the customer. Hardware replacement will begin once BGCI identifies the cause of the problem. Hardware replacement is guaranteed to be complete within 4 hours of problem identification. In the event that it takes us more than 4 hours to replace faulty hardware, BGCI will refund the customer 5% of the monthly fee per additional hour of down time (up to 50% of customer's monthly fee). Hardware is defined as the Processor(s), RAM, hard disk(s), motherboard, NIC card and other related hardware included under the server lease. This guarantee excludes the time required to rebuild a RAID array.
  

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