PONCA CITY PUBLISHING COMPANY, INC. (d.b.a. poncacity.net) (we, us, our) and YOU, AS A SERVER/HOSTING CUSTOMER (you, your) agree to the following: 1.0   Definitions. 1.1   "Customer" means the person who orders the Server Service and has ownership and control rights and obligations for the Server Service. 1.2   "Customer Data" means all supporting data files and data structures provided by the Customer for its Server Space. 1.3   "Server" means the server space and software services provided to the Customer including but not limited to the HTTP service, FTP service, SMTP service, POP service, server extensions, third-party software, and CGI library scripts. 1.4   "Physical Server" means the serving computers, hardware and operating- system, and software necessary to operate and support the Web Server in accordance with this Agreement. 2.0   Scope of Services. We will provide you with the following specific services: 2.1   Physical Server Hardware and Software Services. We will provide the Physical Servers and other computer and operating-system software to operate and support the Web Server in a manner acceptable in the industry. Although we will make reasonable efforts to protect and backup data for you on a regular basis, we are not responsible for the Customer Data residing on the Web Server. You are ultimately and solely responsible for the backup of Customer Data stored on your Server Space. 2.2   Physical Server Set-Up and Updating. We will configure the Web Server, and Customer will load the Customer Data onto the server computers so as to create a fully functional Internet presence. After the Web Server is loaded, set up with the Customer Data, and is fully operational, Customer will be responsible for all Web Server content management. 2.3   Physical Server Connection and Access. We will provide connection of the Server to the Internet, including all telecommunications equipment and connections for the Server to provide public access on a 24-hour-a-day, 7-day-a-week basis, with the exception of scheduled maintenance downtime. We will use our best efforts to provide uninterrupted Physical Server Connection and Access, except for scheduled maintenance downtime and any interruption to Physical Server Connection and Access beyond our control caused by, for example, acts of nature, third-party equipment or transmission failures, or security breaches. 2.4   Maintenance Services. We will perform maintenance services as we determine reasonably necessary to maintain the continuous operation of the Server. You agree to periodically-scheduled maintenance downtime periods. We will provide prior notice of the maintenance downtime, except when circumstances beyond our control limit our ability to do so. 2.5   Hardware, Equipment and Software. You are responsible for and must provide all telephone, computer, hardware and software equipment and services necessary to access us. We make no representations, warranties, or assurances that your equipment will be compatible with our service. 3.0   Payment Terms. You agree to the following payment terms in consideration for the services provided: 3.1   Set-Up Fee. You will pay us a one-time, non-refundable set-up fee according to our current Web Hosting Price Schedule, which is available here on our web site or upon request. 3.2   Service Fee. You will pay us a monthly Service Fee for the services we provide under this Agreement according to our current Web Hosting Price Schedule, which is available on our web site or upon request. The Service Fee is billed to you at the end of each month for that month that you have already received service and is due on receipt. If you first begin using our services after the first of the month, we will prorate your first month's Service Fee. The Service Fee is subject to adjustment, with notice, according to the current Web Hosting Price Schedule. If The Subscribers payment is returned to us unpaid The Subscriber is immediately in default and subject to a returned check administration fee of $50.00 3.3   Cancellation. In the event you cancel your service, you will be charged in full for the entire month in which you canceled your service. In the event you have elected to prepay subsequent, additional months' Service Fees, we retain the right to charge you an administrative fee and deduct the administrative fee from the subsequent, future months' Service Fees before refunding them to you. 3.4   Breach. In the event we terminate this Agreement because of a breach, you will be charged in full for the entire month in which the breach occurred. In the event you have elected to prepay subsequent, additional months' Service Fees, we retain the right to charge an administrative fee and deduct the administrative fee from the subsequent, future months' Service Fees before refunding them to you. 3.5   Tax. These fees are exclusive of any and all federal, state, and local sales, use, value added, excise, duty and any other taxes assessed with respect to the services provided under this Agreement, except that your income taxes and any sales or similar taxes on the sale of the Customer products and services to end users shall be the sole responsibility of the Customer.   3.6 Failure to fulfill payment terms will result in the domain ownership to revert to poncacity.net and will incur a $75.00 transfer and collection fee. 4.0   Representations and Warranties. Our obligations under this Agreement are conditioned upon the following representations and warranties: 4.1   Compliance with Law. You represent and warrant that you will comply with all applicable state and federal laws in your performance of this Agreement and in the use and operation of your Web Space, including laws governing technology, software, trade secrets, and copyrights. 4.2   Authority to Contract. You represent and warrant that you have full authority and right to enter into this Agreement and that there are no conflicting claims relating to the rights granted by this Agreement. 4.3   Non-Infringement. You represent and warrant that your performance of this Agreement and providing the Web Service, including the software or data files, shall not infringe the intellectual property or other proprietary rights of any third party. 4.4   Our Performance. We represent and warrant that our services shall be performed in a professional and workmanlike manner, and the computer servers will be operated in accordance with our obligations as defined by this Agreement. 4.5   Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED ABOVE, WE MAKE NO WARRANTY RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT, AND ALL SERVICES ARE PROVIDED ON AN "AS-IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR OF NON-INFRINGEMENT. 5.0   You expressly agree that use of our Servers is at your own risk. Neither we, our employees, affiliates, agents, third-party information providers, merchants, licensors or the like, warranty that our service will not be interrupted or error free; nor do we make any warranty as to the results that may be obtained from the use of our service or as to the accuracy, reliability or content of any information serviced or merchandise contained in or provided through our service, unless otherwise expressly stated in this Agreement. 5.1   Under no circumstances, including negligence, will we, our officers, agents or anyone else involved in creating, producing or distributing our service be liable for any direct, indirect, incidental, special or consequential damages that result from the use of or inability to use our service. We will further not be liable for results from mistakes, omissions, interruptions, deletions of files, errors, defects, delays and operation, or transmission or failure of performance whether or not limited to acts of nature, communication failure, theft, destruction or unauthorized access to our records, programs or services. You acknowledge that this paragraph shall apply to all content on our Servers. 5.2   Your exclusive remedy for all damages, losses and causes of actions whether in contract or tort (including negligence or otherwise) will not (a) exceed the actual dollar amount which you paid during the 12-month period prior to the date the cause of action arose, or (b) include any incidental, consequential, extemporary or punitive damages of any kind, including without limitation, loss of data, file, profit, good will, time, savings or revenue. 6.0   Term and Termination. The following describes the effective date, duration and methods of termination: 6.1   Effective Date. The Effective Date of this Agreement is the last date appearing below. 6.2   Duration. This Agreement will commence on the Effective Date and continue on a month-to-month basis. 6.3   Termination for Convenience. Subject to Section 3.3, you may terminate this Agreement at any time for your convenience by providing us with advance written notice. 6.4   Breach or Default. The following constitute a breach or default of this Agreement: your failure to pay the current month's Service Fee by the billing time of the following month,   your violation of Section 8.0,   your violation of 9.2, or   your violation of Sections 4.1, 4.2 or 4.3.   6.5   Special Lien on Personal Property. We retain a special lien on all of your personal property in our possession to secure any payment amount you may owe us under this Agreement. 7.0   Ownership Rights. We acknowledge that all right, title and interest in the Customer Data shall be solely owned by the Customer. We own or have licensed all server software. In the event that we elect, at our option, to provide custom software to you, this software will be licensed to you for use only on our Servers on a non-exclusive, royalty-free, fully-paid basis according to the terms of this Agreement. 8.0   Activities Subject to Immediate Deactivation. Any Web Server Space that is used for Illegal, Abusive or Unethical Activity may be immediately deactivated by us without warning to you. Illegal, Abusive or Unethical Activities include, but are not limited to, pornography, obscenity, nudity, violations of privacy, hacking, computer virus, gambling, or promotion of gambling, and any harassing or harmful materials or uses, as determined by us. You agree to indemnify and hold us harmless from any claim resulting from your publications or use of Illegal, Abusive or Unethical materials. Although we will make reasonable efforts to alert you to such activities and allow you an opportunity to cure them within a 12-hour period after discovery, we are not required to give notice before deactivating your use of our services if, in our discretion, your use is or results in Illegal, Abusive or Unethical activities. If a Web Server Space is disabled, the regular monthly fees still apply. 9.0   Miscellaneous. 9.1   Public Nature of Internet. Please understand that all information submitted on the Web Server shall be considered publicly accessible. Important and private information should be protected by you. For example, we are not liable for protection or privacy of electronic mail or other information transferred through the Internet or any other network provider that you may use. 9.2   Unsolicited Electronic Mail. You are expressly prohibited from sending unsolicited bulk mail messages ("junk mail" or "spam"). This includes, but is not limited to, bulk-mailing of commercial advertising, information announcements, and political tracts. Such material may only be sent to those who have specifically requested it. Malicious or threatening email is also prohibited. Although we will make reasonable efforts to alert you to such activities and allow you an opportunity to cure them within a 12-hour period after discovery, we reserve the right to immediately deactivate your use of our service if we discover such activity. Further, you agree to indemnify and hold us harmless from any claim resulting from your use or distribution of electronic mail services through the service provided through this Agreement. 9.3   Governing Law and Attorneys' Fees. This Agreement will be interpreted and applied in accordance with the laws of the state of Oklahoma, without regard to the conflicts of law provisions. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys' fees, whether or not a suit is actually filed. 9.4   Control and Ownership of IP. We maintain and control ownership of all IP numbers and addresses that may be assigned to you, and we reserve, in our sole discretion, the right to change or remove any and all IP numbers and addresses. 9.5   Excessive CPU Usage. Web Server Space which use, in our discretion, CPU processing capacity on the Physical Server in excess of the designed processing capacity will be subject to immediate deactivation. Upgrades to the processing capacity are available. 9.6   Resale of Services You may not resell space on your own Web Server Space to another. 9.7   Age. You certify that you are at least 18 years of age. 9.8   Transfer. You may not transfer or assign this Agreement without the written consent of poncacity.net.   9.9 CGI Scripts Policy. Each account comes with its own cgi-bin. You are free to use any CGI scripts you wish, however we reserve the right to disable any CGI script that effects normal server operation or service to other poncacity.net customers. You will be notified within 24 hours about offending cgi script.   9.10 Right To Refuse Service. poncacity.net reserves the right to refuse service to anyone for any reason. We enforce this policy to insure a professional environment for all the Customers of our system.   9.11 Damages. Under no circumstances, including, but not limited to negligence, shall poncacity.net be liable for any incidental or consequential damages that result from the use of, or the inability to use, the materials in this site, even if poncacity.net or a poncacity.net authorized representative has been advised of the possibility of such damages. Applicable law may not allow the limitation or exclusion of liability or incidental or consequential damages, so the above limitation or exclusion may not apply to you. In no event shall poncacity.net total liability to you for all damages, losses, and causes of action (whether in contract, tort including, but not limited to, negligence), or otherwise exceed the amount paid by you to poncacity.net if any, that is related to the cause of action. Any damage caused by an individual or business to our business reputation or system shall be liable to poncacity.net for any and all damages as allowed by law.   9.12 Indemnification. Users assume all risk and liability arising from their activity on this website. Users agree to indemnify and hold poncacity.net harmless with regard to loss or damage experienced through use of this system. poncacity.net cannot guarantee preservation of records, and may expire information without notice, at its sole discretion. poncacity.net does not assume responsibility for the content or the context of the public display areas such as the bulletin boards or the feedback forums. poncacity.net cannot guarantee that we will notice or prevent any inappropriate use of the system. poncacity.net cannot guarantee that we will notice or prevent users from registering with false information. poncacity.net does not assume responsibility for the content or the context of the listings. poncacity.net is run as a service for the Web community and cannot take responsibility for the quality of the items presented herein. poncacity.net is not responsible for damage or loss caused by errors in the system or the Internet. The system may be unavailable unexpectedly as a result of errors or circumstances beyond our control. Use poncacity.net at your own risk. poncacity.net is not responsible for any additional user services provided to the registrant. These services are provided as is, without warranty or guarantee.   9.13 Invalid or Non Enforceable Provisions. The invalidity or unenforceability of any provision of this agreement, as so determined by a court of competent jurisdiction, shall not affect the other provision hereof, and in any such occasion this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted.   9.14 Choice of Law/Venue. The laws of the State of Oklahoma, County of Kay, City of Ponca City, excluding its conflicts-of-law rules, govern.   As noted elsewhere, your conduct may be subject to other local, state, and national laws. You expressly agree that exclusive jurisdiction for any claim or dispute resides in the courts of the State of Oklahoma. You further agree and expressly consent to the exercise of personal jurisdiction in the State of Oklahoma in connection with any dispute or claim involving Ponca City Publishing Company, Inc. (d.b.a.) poncacity.net. Last Update To This Agreement: March 1, 2004 INSTRUCTIONS After you have reviewed the above Server Agreement, please complete the Acknowledgment of Receipt and Execution of Agreement Form.   If you have any questions please direct them to:   Ponca City Internet 300 N. 3rd Street Ponca City, OK 74601   or   Phone: 580-765-3311 Fax: 580-762-6397 Email: webadmin@poncacity.net