READ THIS AGREEMENT CAREFULLY BEFORE USING ANY ServerBuffet SERVICE.  THIS IS A LEGALLY BINDING AGREEMENT BETWEEN ServerBuffet AND YOU, INCLUDING ANY ServerBuffet CUSTOMER, USER, OR WEBSITE VISITOR, (collectively referred to herein as “Customer”).

Terms of Service

This agreement (this “Agreement”) between ServerBuffet, LLC, a Delaware limited liability company, (“ServerBuffet”) and Customer governs provision of ServerBuffet’s services (the “Service”).  This Agreement is effective as of the moment Customer indicates agreement at the ServerBuffet Website, as of the moment the two parties sign a paper version, or as of the moment Customer uses any ServerBuffet Website or element of the Service (whichever comes first).

1.  The Service.

1. ServerBuffet will provide the Service pursuant to this Agreement and ServerBuffet’s then-standard policies and procedures.
2. Professional services included in the Service, if any, are subject to the same terms and conditions as other elements of the Service, including without limitation the disclaimers and limitations of liability in Section 7 below.  Each professional service is also subject to the terms and conditions of its statement of work (if any) executed by authorized representatives of both parties.  Fees for professional services are in addition to Service fees required pursuant to Subsection 2(a) below.  Customer will pay for professional services at ServerBuffet’s then-standard rates, unless the relevant statement of work specifically provides for a different payment structure.

2.  Payment Plans & Terms.

1. Customer will pay ServerBuffet’s standard fees for the Service, including fees required pursuant to one of the following plans, as reflected in Customer’s ordering records maintained by ServerBuffet (including without limitation any accepted quote) (Customer’s “Signup”):
   1. Monthly Payment Plan: Customer pays monthly.
   2. Prepayment Plan: Customer pays annually or on such other periodic basis, longer than one month, as is defined in Customer’s Signup (Customer’s “Prepayment Period”).  Customer may switch to a monthly payment plan or change the duration of its Prepayment Period by giving ServerBuffet written notice of such intent 30 or more days before the end of the current Prepayment Period.  Absent such notice, Customer’s Prepayment Period will renew automatically for a period of the same duration, and ServerBuffet may charge Customer for the new Prepayment Period upon completion of the old one.  Subject to the requirements of any Commitment Period (as defined in Subsection 2(b) below), in the event that Customer terminates this Agreement before the end of its Prepayment Period, Customer will receive a refund for the remainder of the Prepayment Period, minus an adjustment equal to: (A) the difference between the amount Customer has paid and the amount it would have paid pursuant to a Monthly Plan, plus (B) any set-up fees Customer would have paid pursuant to a Monthly Plan.  (For purposes of such calculations, Monthly Plan prices are set at ServerBuffet’s then-standard prices.)
2. If Customer’s Signup designates an annual or other commitment period (a “Commitment Period”), termination of this Agreement will not relieve Customer of its obligation to pay all fees due for such Commitment Period, and no such fees will be refundable pursuant to Subsection 2(a)(ii) above.  All fees for a Commitment Period will fall due 5 business days after termination of this Agreement for any reason.  A completed Commitment Period may be renewed by written agreement executed by both parties.
3. Customer will pay for the Service in advance.  Customer will make all payments in U.S. dollars.  ServerBuffet is not required to issue refunds or credits except as specified in this Agreement.
4. ServerBuffet may issue invoices through the ServerBuffet customer portal, ServerBuffet.com (the “Customer Portal”).  At Customer’s request, ServerBuffet may issue invoices through another method, and may charge an extra fee for such method.  Customer will maintain awareness of its usage levels and the fees it owes ServerBuffet and will pay them on or before their due-dates.  Any payment not received when due will, at ServerBuffet’s option, bear interest at a rate of 1.5% per month from the date due until paid, to compensate ServerBuffet for the time-value of the unpaid fees.  In addition, ServerBuffet may charge a late fee of $19.99 per week, as liquidated damages, starting on the first day after any payment is due.  Such liquidated damages compensate ServerBuffet for administrative expenses related to unpaid fees.
5. If Customer exceeds its transfer allotment, bandwidth commitment, or other pre-paid Service allotment, ServerBuffet may: (i) charge Customer for such overage immediately via credit card and will notify Customer in writing of such charge; or (ii) issue a one-time invoice for such overage, with payment due by wire transfer or direct deposit in 7 days.  If ServerBuffet concludes, in its sole discretion, that Customer’s account reflects a pattern of repeated overage, ServerBuffet may require prepayment, and Customer will pay for such overage on Customer’s regular payment date or on a monthly basis.  The provisions of this Subsection 2(e) apply regardless of the cause of overage, even if caused by hacker activity or other third party actions.
6. ServerBuffet may require that Customer maintain a valid credit card on file at all times.  In such case: (i) ServerBuffet may charge such card for Service fees or other fees on the first business day prior to any payment due-date; and (ii) Customer will update credit card information as necessary in the Customer Portal.  If any charge attempt is denied, ServerBuffet may interrupt Service without advanced notice but will make reasonable efforts to provide such notice.
7. A Returned check will constitute a material breach of this Agreement, and Customer will incur a $50.00 returned check charge, as liquidated damages.  Such liquidated damages compensate ServerBuffet for administrative expenses related to returned checks.  If ServerBuffet concludes, in its sole discretion, that Customer’s account reflects a pattern of repeated late, bounced, or incomplete payments, ServerBuffet may require payment via wire transfer or direct deposit.

3.  Termination.

1. This Agreement will continue until terminated by either party pursuant to the procedures set forth in this Section 3.
2. Customer may terminate this Agreement on 30 days’ advanced written notice: (i) for convenience, unless Customer is subject to a Commitment Period pursuant to Subsection 2(b) above; or (ii) for material breach, provided the notice of termination specifies the nature of the breach and provided termination will not be effective if ServerBuffet cures the breach during the 30-day notice period.  Customer will provide notice of termination through the online cancellation form in the Customer Portal.  If Customer is terminating pursuant to the SLA (as defined in Subsection 5(a) below): (1) such notice will state: “termination per SLA”; and (2) notwithstanding the foregoing, such notice need not be given in advance or provide opportunity to cure.  ServerBuffet is not required to refund any payments in the event of termination by Customer except as specifically stated in Subsection 2(a)(ii) above.
3. ServerBuffet may terminate this Agreement for convenience as of the end of Customer’s Commitment Period, or at any time in the absence of a Commitment Period.  ServerBuffet will provide 30 days’ advanced written notice of any termination for convenience.  Upon such termination, ServerBuffet will refund any amounts paid pursuant to a Prepayment Plan for Service not yet provided.
4. In the event of any material breach of this Agreement, including without limitation any breach of the provisions of the AUP (as defined in Subsection 4(a) below) or of the payment obligations set forth in Section 2, ServerBuffet may terminate the Service, any portion thereof, or this Agreement, without advanced notice.  ServerBuffet is not required to refund any fees paid or prepaid after such termination.

4.  Acceptable Use & Privacy.

1. Customer represents that it has read ServerBuffet’s acceptable use policy (“AUP”), currently posted at http://www.ServerBuffet.com/aup.html.  The AUP is hereby incorporated into this Agreement, and Customer will adhere to its requirements.
   1. Without limiting the generality of the foregoing, Customer will not allow the Service or ServerBuffet equipment to be used for activities prohibited by the AUP.  Third party violations of the AUP using Customer’s Service, including any IP addresses, points of access to the Internet, systems, software, or equipment assigned to Customer, will be considered violations by Customer.
   2. Notwithstanding any provision to the contrary in this Agreement, and without limiting any of ServerBuffet’s rights or remedies, ServerBuffet may suspend Service in whole or in part in the event that ServerBuffet reasonably suspects an AUP violation.  Reasonable suspicion pursuant to the preceding sentence includes, without limitation, a third party notice or claim that Customer’s use of the Service infringes on third party rights.  ServerBuffet will make reasonable efforts to notify Customer before any such suspension, unless the AUP violation calls for immediate action to prevent injury or liability, in ServerBuffet’s opinion and at its sole discretion.  Suspension pursuant to this Subsection 4(a)(ii) may continue so long as ServerBuffet reasonably suspects an AUP violation.  ServerBuffet is not liable for any Service suspension authorized by this Subsection 4(a)(ii), even if the suspected AUP violation did not occur.
2. ServerBuffet has no obligation to monitor the Service for AUP violations or for other illegal or improper conduct but may do so and may disclose information regarding use of the Service for any reason, including: to satisfy laws, regulations, or governmental, legal, or law-enforcement requests; to operate the Service properly; and to protect itself and its customers. ServerBuffet may grant law enforcement agencies access to its equipment, including equipment used to provide Service to Customer.
3. ServerBuffet’s privacy policy (“Privacy Policy”), currently posted at http://www.ServerBuffet.com/terms.php, is hereby incorporated into this Agreement.  The Privacy Policy applies only to the Service and to ServerBuffet’s Website.  ServerBuffet is not responsible for use or misuse of data by any third party, including without limitation any other ServerBuffet customer.

5.   Service Levels & Remedies.

1. ServerBuffet’s service level agreement, posted at http://www.ServerBuffet.com/terms.php, (the “SLA”) is hereby incorporated into this Agreement.
2. The SLA does not apply to any feature of the Service not specifically identified in the SLA, or to any feature ServerBuffet identifies as “beta.”  All Service features, whether or not addressed in the SLA, are provided pursuant to the provisions of Section 7(b) below and the other terms and conditions of this Agreement.
3. ServerBuffet will not be liable for Service interruptions or any other Service failures except as specifically set forth in the SLA and in this Section 5.  In the event that Customer is dissatisfied with the Service, Customer’s sole remedies are those listed in the SLA and in this Section 5, or termination of this Agreement pursuant to the provisions of Section 3 above.  Remedies listed in the SLA do not apply to any Service interruption authorized pursuant to Section 6 or any other provision of this Agreement, and ServerBuffet will not be liable for any such interruption.

6.  Service plans.

1. 100mbps unmetered servers: Each server is connected via routed port (non shared) to the Server Buffet SHARED Network, shared by all unmetered servers. Customers on 100mbit unmetered servers can expect a at least 10000GB of outbound transfer (30-35 mbits of average usage), and up to 30000GB (100mbits) of inbound transfer.

    

2. 100mpbs Unmetered Dedicated Bandwidth Servers: Each server is connected via routed port (non shared) to the Server Buffet PREMIUM network. All bandwidth allocated to a particular server is dedicated to that server. For example, a server with a 100mbit package may use up to 100mbps (inbound / outbound) at any time.

7.  Maintenance & Security.

1. ServerBuffet may interrupt Service to perform maintenance on ServerBuffet equipment or to address and/or mitigate the effects of security breaches, virus attacks, denial of service attacks, and other intentional interferences by third parties.  ServerBuffet will exercise reasonable efforts to inform Customer before interrupting Service and to repair the Service promptly.
2. Customer is responsible for maintaining security, for maintaining patches and disaster recovery systems, and for maintaining backups, except to the extent ServerBuffet specifically accepts such responsibility by listing such service features in Customer’s Signup (subject to the limitations of liability in Section 7 and elsewhere in this Agreement).  Customer will promptly report any Service failure to ServerBuffet via the online ticketing system in the Customer Portal.  ServerBuffet is not responsible for providing physical access to or copies of software, data, or content stored on ServerBuffet’s equipment under any circumstances and is not required to provide network access (i) after any termination or suspension of Customer’s Service or (ii) in the event of hardware failure, abuse by hackers or other third parties, improper administration by Customer, or other interruption of network access.  ServerBuffet may notify Customer of leaks or exposure of private data, but except to the extent required by law, ServerBuffet is not required to provide such notification.
3. ServerBuffet is not required to reimburse any expenses Customer incurs for technology diagnosis or repair, including without limitation expenses for outside consultants.

8.  Warranties, Disclaimers, & Limitations of Liability.

1. No communication between Customer and ServerBuffet will create a warranty or in any way alter or restrict any disclaimer of warranty or limitation of liability set forth in this Section 7 or elsewhere in this Agreement.  As used in the previous sentence, “communications” include, without limitation, marketing materials and representations of salespeople, advice provided by ServerBuffet or any of its representatives, quotes, Customer’s Signup, and any work order or other ordering document.
2. ServerBuffet MAKES NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.  ServerBuffet does not warrant that the Service will be uninterrupted, error-free, or free from viruses or other harmful components.  The Service is provided with no warranties regarding security, reliability, protection from attacks, or data integrity.  Except to the extent specifically provided in the SLA, THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
3. ServerBuffet WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR MULTIPLE DAMAGES, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.  ServerBuffet’S MAXIMUM LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER DURING THE 12 MONTHS PRECEDING THE INJURY GIVING RISE TO THE CLAIM.  THE LIABILITIES LIMITED BY THIS SUBSECTION 7(c) INCLUDE, WITHOUT LIMITATION, LIABILITY FOR NEGLIGENCE.
4. Except to the extent specifically provided in Section 5 above, and except to the extent that applicable law specifically forbids such limitation of liability, ServerBuffet WILL HAVE NO LIABILITY WHATSOEVER FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS, OR PROCEEDINGS RESULTING FROM ANY OF THE FOLLOWING OR FROM ANY ServerBuffet EFFORTS TO ADDRESS OR MITIGATE ANY OF THE FOLLOWING: (i) SECURITY BREACHES, INCLUDING WITHOUT LIMITATION EAVESDROPPING, THIRD PARTY ACCESS TO CUSTOMER DATA OR TO ASSIGNED COMPUTERS, THIRD PARTY ACCESS TO OR MISUSE OF PASSWORDS PROVIDED TO ServerBuffet, AND INTERCEPTION OF TRAFFIC SENT OR RECEIVED USING THE SERVICE; (ii) RELEASE OR EXPOSURE, FOR ANY OTHER REASON, OF PERSONALLY IDENTIFIABLE INFORMATION OR OTHER PRIVATE DATA, INCLUDING DATA BELONGING TO CUSTOMER’S OWN CUSTOMERS AND OTHER USERS; (iii) DENIAL OF SERVICE ATTACKS, VIRUSES, WORMS, AND OTHER INTENTIONAL INTERFERENCE BY THIRD PARTIES; (iv) LOSS OF DATA OR LOSS OF ACCESS TO DATA; (v) ACTIONS OF THIRD PARTIES; (vi) ACTIONS OF ServerBuffet EMPLOYEES, AGENTS, OR CONTRACTORS ACTING OUTSIDE THE SCOPE OF THEIR DUTIES; (vii) MISTAKES, OMISSIONS, INTERRUPTIONS, DELETIONS OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR OTHER FAILURES OF PERFORMANCE OF THE SERVICE, INCLUDING WITHOUT LIMITATION ACCIDENTAL DISCONNECTION AND TERMINATION OF SERVICE; AND (viii) THE ACCURACY, COMPLETENESS, AND USEFULNESS OF THE SERVICE.  As used in the preceding sentence, “third parties” include other ServerBuffet customers.  THE PROVISIONS OF THIS SUBSECTION 7(d) APPLY, WITHOUT LIMITATION, TO LIABILITY FOR NEGLIGENCE, AND APPLY EVEN IF CUSTOMER PURCHASES SERVICE FEATURES ADDRESSING SECURITY, DATA INTEGRITY, DATA BACKUP, ATTACK PROTECTION, VIRUSES, SPAM, MONITORING, OR SYSTEM INTEGRITY.
5. ServerBuffet’s limitations and exclusions of liability and disclaimers of warranty, set forth in this Section 7 and elsewhere in this Agreement, (collectively, the “Limitations”) apply equally to ServerBuffet’s officers, employees, agents, contractors, representatives, suppliers, subsidiaries, parents, and affiliated companies.  Customer acknowledges and agrees that ServerBuffet has set its prices and entered into this Agreement in reliance upon the Limitations, and that the Limitations form an essential basis of the bargain between ServerBuffet and Customer.  The Limitations survive and apply even if Customer’s remedies provided in this Agreement are found to have failed of their essential purpose.

9.  Indemnity.

Customer will defend and indemnify ServerBuffet (including its officers, employees, agents, contractors, representatives, suppliers, subsidiaries, parents, and affiliated companies) from a claim by any of Customer’s customers or users, or any other third party, arising out of or related to Customer’s use of, misuse of, or failure to use the Service, including without limitation: (a) alleged Customer conduct that would breach this Agreement, including alleged infringement of intellectual property or privacy rights and other AUP violations; (b) security breaches or other alleged faults in the Service, including without limitation faults listed in the SLA and faults leading to the release or exposure of personally identifiable information or other private data (whether such data belongs to Customer, to one of Customer’s customers, or to other third parties); and (c) any action taken by ServerBuffet as part of an investigation into a suspected violation of this Agreement or as a result of its conclusion that a violation has occurred.  Such Customer obligation includes payment of losses, expenses, damages, and costs, including without limitation attorneys’ fees.

10.  Miscellaneous.

1. All software, hardware and Internet protocol addresses provided by ServerBuffet are licensed to Customer temporarily and remain ServerBuffet’s sole and exclusive property.  Title and intellectual property rights to the Service are owned by ServerBuffet, its agents, suppliers, or affiliates or their licensors.  Nothing in this Agreement transfers to ServerBuffet any copyright in, trademark on, or other ownership interest in any data or content of Customer posted at any website.
2. ServerBuffet is not obligated to sell Customer any Service feature not listed in Customer’s Signup, or to provide more Service than required by such Signup.
3. During the term of this Agreement and for 180 days thereafter, Customer will not encourage or solicit any ServerBuffet employee or independent contractor to leave ServerBuffet’s employ, or otherwise interfere with ServerBuffet’s employment relationships.
4. The parties agree that the fees listed as liquidated damages in Subsections 2(d) and 2(g) of this Agreement do not constitute penalties and are reasonable in light of the harm that will be caused by breach, the difficulties of proof of loss, and the inconvenience and infeasib­ility of otherwise obtaining an ade­quate remedy.  No remedy of ServerBuffet provided in this Agreement for late payment, declined credit card charges, or other breaches will limit any other right or remedy of ServerBuffet at law or in equity.
5. All written communications to Customer will be deemed delivered if sent to the contact points provided to ServerBuffet at the time of order, or to such other contact points as Customer provides in writing.  Customer will include a valid e-mail address with such contact points.  All written communications to ServerBuffet and all fees will be mailed to 360 Spear St., Suite 200, San Francisco, CA 94105, unless ServerBuffet notifies Customer in writing of alternate contact information, except to the extent that this Agreement provides that such communication will be made through the Customer Portal.
6. ServerBuffet may revise this Agreement, including the AUP, the Privacy Policy, the SLA, and the standard provisions of any payment plan, from time to time by posting a new version on the ServerBuffet Website.  Revised terms will become effective at the start of Customer’s next Commitment Period or Prepayment Period, whichever is later, or in the absence of either, 30 days after posting thereof (collectively, Customer’s “Renewal Date”).  Customer waives any right to notice of revised terms other than through the ServerBuffet Website, and such waiver will remain in force even if ServerBuffet does provide notice by e-mail or another medium.  Customer’s continued use of the Service after any Renewal Date will constitute acceptance of such revised terms.  Notwithstanding the foregoing, revisions to the Privacy Policy will become effective upon posting thereof.  This Agreement may not be revised or amended in any other way, except through a written contract executed by authorized representatives of both parties.  ServerBuffet may provide notices via e-mail, but no e-mail exchange will amend this Agreement, even if such messages purport to do so.
7. This Agreement is to be construed in accordance with and governed by the internal laws of the State of California without giving effect to any choice of law rule that would cause the application of the laws of any other jurisdiction other than the internal laws of the State of California to the rights and duties of the parties. The parties hereby consent to the personal and exclusive jurisdiction and venue of the federal and state courts of San Francisco, California.
8. No delay, failure, or waiver of either party’s exercise or partial exercise of any right or remedy under this Agreement will operate to limit, impair, preclude, cancel, waive, or otherwise affect such right or remedy.
9. In the event of any conflict between this main body of this Agreement and any document incorporated by reference, or any ordering document or statement of work, this main body of this Agreement will govern.
10. If any provision of this Agreement is held invalid, illegal, or unenforceable, including without limitation as a result of unconscionability or inconsistency with public policy, such provision will be construed so as to come as close as possible to its intended meaning, and the validity, legality, or enforceability of the remaining provisions will in no way be impaired. 
11. This Agreement, including those documents incorporated by reference, embodies the final, full, and exclusive statement of the agreement between the parties, and supersedes all prior agreements, negotiations, representations, and proposals, written or oral, relating to its subject-matter.