Terms of Services

Hosting Services Agreement

This agreement pertains to YesUp Ecommerce Solutions Inc’s hosting services.

1. Definitions

In this Agreement, the following words have the following meanings unless the context otherwise requires:

Acceptable Use Policy means policies and rules (if any) as may from time to time be stipulated, amended or varied by YesUp, which govern the Subscriber’s use of the Services;

Agreement means the General Terms and Conditions herein, the Application Form, the Service Level Agreement (if any), the Acceptable Use Policy (if any) of the Services as may from time to time be amended or varied by YesUp;

Applicable Law means any constitution, law, statute, ordinance, act, regulation, rule, stipulation, instrument, decree, order, measure, notice, notification, judgment, common law, customary law, treaty and any other legislation or law, in each case of any jurisdiction whatever, as well as any present or future directive, regulation, request, requirement or program (in each case of any jurisdiction whatever and whether or not having the force of law, but, if not having the force of law, the compliance with which is in accordance with the general practice of persons to whom the directive is addressed) and “lawful” and “unlawful” shall be construed accordingly;

Service Order form means the Service Order Form executed by the Subscriber and YesUp, which specifies the Services to be provided by YesUp;

Charges means all fees and charges payable by the Subscriber under this Agreement (including, without limitation, all installation charges, subscription fees, usage fees, deposits and other relevant fees and charges), which relate to the Subscriber’s use of the Services;

Commencement Date means earliest of: (i) the date when YesUp completes the installation of the Services and the Services are made available for use by the Subscriber; or (ii) the date when Subscriber signs or chops on the service completion form of YesUp ; or (iii) the date when Subscriber starts using the Service; or (iv) the seventh day following YesUp notifying Subscriber that YesUp has successfully completed the service acceptance testing on the Service.

Data Centre means the premises where YesUp provides Licensed Area for the Subscriber;

Denial of Service means an explicit attempt by attacker to prevent legitimate users of a service from using that service;

Effective Date means the date specified in the Application Form, upon which this Agreement becomes effective;

Equipment means any telecommunications and other equipment (including, without limitation, any router or modem), whether owned by or leased to YesUp, provided by YesUp to the Subscriber in connection with the provision of the Services;

General Terms and Conditions means the General Terms and Conditions herein of the Services as may from time to time be amended or varied by YesUp;

Group Companies means YesUp and/or its subsidiaries and/or associated companies and/or any other company which is for the time being a holding company (ultimate or intermediary) of YesUp and/or any subsidiary of such holding company for the time being;

Hacking means unauthorised use, or attempt to circumvent or bypass the security mechanisms of an information system or network;

Intellectual Property Rights means all patents, trade marks, registered designs, design rights, applications for any of the foregoing, copyrights, trade or business names (including internet domain names and email address names), inventions, processes, know-how and other industrial property rights;

YesUp Means YesUp Ecommerce Solutions Inc.

YesUp’s Website means the website of YesUp at www.YesUp.net

Password means any password or similar device issued or provided by YesUp to the Subscriber or chosen by the Subscriber (as may from time to time be changed by the Subscriber in the manner stipulated by YesUp or otherwise changed by YesUp ), which relates to the Subscriber’s use of the Service;

Phishing means the act of sending an email to a user falsely claiming to be an established legitimate enterprise in an attempt to scam the user into surrendering private information that will be used for identity theft. The email directs the user to visit a website where they are asked to update personal information, such as passwords, credit card information, social security, and bank account information, that the legitimate organization already has. The website, however, is bogus and set up only to steal the user’s information;

Security Attack means any activities attempting to influence the confidentiality, integrity, availability and non-repudiation of the network systems. These activities may (i) interrupt access and use if the network systems; (ii) pretend as someone else to receive the confidentiality information; (iii) involve unauthorized access to and modification of third party’s information, etc.;

Services means the provision of telecommunication and networking services, equipment supply and other related services elected by the Subscriber in the Service Order Form of the Services or requested by the Subscriber from time to time under this Agreement;

Service Level Agreement means the Service Level Agreement (if any) entered into between the Subscriber and YesUp in relation to the agreed level of the Services;

Spam means sending of unsolicited (single, bulk or commercial) junk messages, not limited to email, and postings without the recipient’s prior request or consent;

Spoofing means forging any person or systems to make it appear as it comes from somewhere or someone other than the actual source;

Spyware Attack means an attempt to gather user information without the user’s knowledge by means of software and transmission from network connection;

Subscriber means the company or organisation identified on the Service Order Form of the Service whose application for the Services has been accepted by YesUpnet;

Subscriber Content means all texts, words, names, likenesses, trademarks, logos, artwork, graphics, video, audio, HTML coding, domain names, email address names, image maps, links, software applications, or other content, material or software that appear on, or are uploaded to, the website(s) of the Subscriber or runs or hosted on the Subscriber’s computers or the Equipment on behalf of the Subscriber;

Subscriber Equipment means the software, computers, servers, racks and other equipment owned, licensed or leased by the Subscriber;

Subscriber Services means the services (if any) supplied by the Subscriber to the Subscriber’s customers incorporating the Services or any part thereof;

Subscriber Website means the Subscriber’s website(s) or the Subscriber’s customer’s website(s) (if any) hosted on the Equipment;

Suspension Administration Fee means the administration fee, equivalent to one month subscription fee, payable by the Subscriber pursuant to Clause s 8.5 or 8.6 hereof;

System means YesUp’s connected system of servers used to host web sites together with all proprietary software and other coding developed by YesUp for provision of the Services to Subscriber; and

Special Terms and Conditions means specific terms and conditions (if any) as applicable to the Services for the time being.

2. Scope of Agreement

YesUp agrees to provide the Subscriber, and the Subscriber agrees to subscribe from YesUp, the Services for the term of this Agreement and subject to and in accordance with the terms and conditions of this Agreement.

3. Commencement and Term

3.1 This Agreement shall take effect on the Effective Date.

3.2 Subject to Clauses 11.2, 11.3, 11.4 and 11.5 below, this Agreement shall be for an initial minimum term of twelve (12) months, or otherwise specified in the Service Order Form, from the Commencement Date (the “Initial Term”) or otherwise stated. On expiration of the Initial Term, this Agreement shall continue in force until terminated pursuant to Clause 11 below.

3.3 Subject to Clause 3.4, the Subscriber may terminate this Agreement prior to the end of the Initial Term by giving YesUp not less than two (2) months’ prior written notice.

3.4 In addition to any legal or equitable remedies available to YesUp, if this Agreement is repudiated or terminated by the Subscriber before the expiry of the Initial Term for any reason other than termination by YesUp pursuant to Clause 11.2 below or termination by the Subscriber pursuant to Clause 11.4 below, the Subscriber shall be liable to pay YesUp as liquidated damages a termination charge equal to all Charges covering the remaining period of the Initial Term , unless the Subscriber comes into an agreement with YesUp on a different basis of liquidated damages for early termination.

3.5 The Subscriber acknowledges that on early termination of the Services pursuant to Clause 3.3 hereof, YesUp will suffer loss arising from the provision of resources and staffing and that accordingly the Charges under Clause 3.4 hereof is not a penalty but represents a genuine pre-estimate loss, which YesUp will suffer.

4. Payment

4.1 In consideration for the provision of the Services, the Subscriber shall pay to YesUp the Charges stated on the bill statements of YesUp or notified or presented by YesUp to the Subscriber from time to time. Charges will begin to accrue as from the Commencement Date.

.2 YesUp will issue bill statements for the Charges to the Subscriber by post, electronic mail and/or facsimile transmission. All Charges are due and payable the payment date as specified in the bill statement.

4.3 Notwithstanding the termination of this Agreement, YesUp shall be entitled to charge a late payment charge calculated at the rate of 1.5% per month accrued on a daily basis on any Charges not paid on or before the payment due date as stated in the bill statement therefore until such Charges has been paid in full.

4.4 YesUp may demand a deposit from the Subscriber to secure the Subscriber’s payment of any sum due to YesUp and may at any time vary such deposit’s amount at YesUp sole discretion. YesUp may apply such deposit to reduce or pay any sums due by you to YesUp on whatsoever account at any time. No interest shall accrue on any deposit held by YesUp . Any deposit remaining following the termination of this Agreement shall be returned to the Subscriber after deducting any such sums due to YesUp following termination of this Agreement.

4.5 In case of disputes over any usage of the Services or the Charges, YesUp’s usage records and those of any third party supplier or service provider in providing the Services shall be conclusive evidence of all such usage of the Services or Charges.

4.6 Without prejudice to Clause 4.3 above, any queries regarding a bill statement must be raised within thirty (30) days of the date of the bill statement. The above dispute period shall not be applicable to those invoices that are due immediately and the Customer hereby irrevocably waives its rights to raise any queries/disputes in respect of those immediately due invoices.

4.7 The Subscriber shall pay all taxes (including any goods service tax or any equivalent hereto), duties, stamp duties, impost, levies or government charges relating to this Agreement and the Services. If the Subscriber is required by law to make any deduction or withholding from any amount payable to Yersup under or in relation to this Agreement then the amount paid by the Subscriber shall be increased such that YesUp receives the full amount specified under this Agreement net of such deduction or withholding.

5. Obligations of YesUp

5.1 YesUp will during the term of this Agreement provide the Services to the Subscriber in accordance with the terms and conditions of this Agreement. YesUp will use its reasonable endeavors to install and provide the Services within the agreed timescales (if any). However, such time scales are estimates only and YesUp will in no event be liable for any costs, charges, losses or expenses of any kind arising out of any delays in meeting such timescales.

5.2 YesUp will provide the Services only at the premises at which the Equipment is installed by YesUp . YesUp shall not be liable for any loss or damage of whatever kind by reason of any delay in the delivery or installation of the Equipment.

5.3 YesUp will comply with the Service Level Agreement (if any) of the Services for the time being as posted on YesUp’s Website. YesUp may at any time and at its absolute discretion amend or vary the terms of the Service Level Agreement (if any) of the Services by giving the Subscriber not less than thirty [30] days’ prior written notice of such amendments or variations. By continuing to use the Services without making objection to such amendments or variations within thirty [30] days of such notice, the Subscriber is deemed to accept the same. For the purpose of this Clause, publication or posting of such amendments or variations on YesUp’s Website or by email to the Subscriber shall constitute written notice. The revised or amended terms will take effect when they are posted on YesUp’s Website.

5.4 YesUp will grant to the Subscriber a non-exclusive and non-transferable license (if any) for the Subscriber to store, run and use the software on the Subscriber’s computer or the Equipment in accordance with the terms and conditions of this Agreement and the software license with accompanies the software but not further or otherwise. Except to the extent permitted by law, Subscriber shall not alter, modify, adapt or translate the software non decompile, disassemble or reverse engineer the same nor attempt to do any such thing.

5.5 YesUp will comply with the terms of its Privacy Statement and the provisions of the Personal Data (Privacy) Ordinance in dealing with the personal data of any of the Subscriber’s employees which it collects.

6. Obligations of the Subscriber and Subscriber Warranties

6.1 The Subscriber shall allow personnel of YesUp or its agents to have full and complete access to the premises of the Subscriber for the purposes of installing and providing the Services or any of them. The Subscriber shall at its own cost prepare the installation site and make all other necessary preparations in accordance with YesUp’s specifications.

6.2 The Subscriber shall provide YesUp with all necessary co-operation, information, equipment, data and support which YesUp may reasonably require for the provision of the Services at such times as YesUp requests.

6.3 The Subscriber shall not, and warrants and undertakes that it will not, use the Services, the Equipment and the Subscriber Equipment (if applicable) to infringe any Intellectual Property Rights of any third party or to copy, reproduce, distribute, publish or otherwise transmit any unsolicited advertising or promotional material or any material which is obscene, indecent, seditious, offensive, defamatory or discriminatory or the publication or distribution of which is in breach of the confidence of YesUp or any third party.

6.4 The Subscriber shall not, and warrants and undertakes to YesUp that it will not, use or allow others to use the Services to circulate, publish, transmit, distribute any unsolicited advertising or promotional information or any content that is seditious, obscene, defamatory, indecent, threatening, offensive, liable to incite racial hatred, discriminatory, menacing or in breach of confidence or any related law which infringes the privacy of an individual or may cause YesUp in breach of any related Law.

6.5 The Subscriber shall not, and warrants and undertakes to YesUp that it will not, use or other to use the Services for junk mail, chain letters, Spamming, Spyware or the transmission of any unlawful material of any kind or nature.

6.6 The Subscriber shall not, and warrants and undertakes to YesUp that it will not, cause or allow others to cause any Security Attack on the System.

6.7 The Subscriber shall not, and warrants and undertakes to YesUp that it will not, act or allow others to act in such a way that may jeopardize or impair the provision of the Services by YesUp in Canada or any other parts of the world;

6.8 The Subscriber warrants and undertakes to YesUp that: -

6.8.1 the Subscriber is the owner, valid licensee, lessee or authorized user of the Subscriber Content, the Subscriber Equipment (if applicable) and each element thereof;

6.8.2 the use of the Subscriber Content or the Subscriber Equipment (if applicable) will not infringe the Intellectual Property Rights of any third party, or constitute unfair competition, a defamation, invasion of privacy, or violation of any right of publicity or other third party right, or be misleading;

6.8.3 no part of the Subscriber Content, the Subscriber Equipment (if applicable) or the Subscriber Service is or will be in breach of any Applicable Law;

6.8.4 no part of the Subscriber Content or the Subscriber Service or the Subscriber Website incites or will incite hatred or discrimination against any group of persons being a group defined by reference to colour, race, sex, gender, origin, nationality or ethnic or national origins;

6.8.5 no part of the Subscriber Content or the Subscriber Service or the Subscriber Website denounces or will denounce religious or political beliefs;

6.8.6 no part of the Subscriber Content or the Subscriber Service or the Subscriber Website is or will be indecent, obscene, seditious, harassing, abusive, threatening, harmful, vulgar, pornographic, offensive or of doubtful propriety, likely to encourage crime, public disorder, violence or hatred or likely to damage public health, safety or morals;

6.8.7 the Subscriber Content and the Subscriber Equipment (if applicable) shall be free from viruses, worms, Trojan horses, and other malicious code;

6.8.8 the use of the Subscriber Website by itself, or any other third party, conforms to general standards of behavior for the internet.

6.8.9 the Subscriber is, and at all times will be, able to grant to YesUp the licenses and other rights contemplated by this Agreement; and

6.8.10 the Subscriber has disclosed and will disclose to YesUp any actual, threatened or potential litigation in which the Subscriber has become or may be involved in relation to the Subscriber Content, the Subscriber Equipment, the Subscriber Service or the Subscriber Website.

6.9 The Subscriber’s right to use the Services is personal to the Subscriber. The Subscriber shall not license or lease or permit or purport to license or lease the use of the Services or permit any third party to use the Services, whether or not for financial or other consideration unless the Subscriber comes into a specific agreement with YesUp thereto. If the Subscriber designates more than one permitted user of the Services within its organization, the Subscriber shall bring the provisions of this Agreement to the attention of each permitted user and shall procure that each permitted user shall comply with the provisions of this Agreement. The Subscriber shall be responsible for use of the Services by its permitted users and the indemnity given in Clause 13.1 below shall extend to all such use of the Services.

6.10 The Subscriber shall at its own expense maintain and keep all Equipment in good condition. The Subscriber shall indemnify YesUp for any damage to the Equipment upon demand.

6.11 The Subscriber shall keep the PIN and/or Password confidential and be responsible for any and all use of the Services to which the Subscriber’s PIN and/or Password is or are used. If the Subscriber becomes aware of any unauthorized access to the Services by any person who has used its PIN or Password without its permission, or if the Subscriber believes that its PIN or Password has been lost or stolen, the Subscriber shall immediately notify YesUp and the Subscriber shall be liable for all Charges and cost incurred until the Services is being suspended by YesUp . YesUp shall not be liable for any loss or damage which the Subscriber incurred by reason of any unauthorized access to the Services or any authorized use of its PIN or Password.

6.12 The Subscriber shall notify YesUp in writing as soon as practicable of any changes of Subscriber’s information, including without limitation to office address and contact telephone number for the purpose of enabling YesUp to provide or continue to provide the Services to the Subscriber.

6.13 The Subscriber authorizes YesUp or grants YesUp the consent to use any of the Subscriber’s information or personal data as defined in our Privacy Policy for the purpose of processing the registration and for the provision of the Services and any other services provided by YesUp for the time being (if any). The Subscriber also authorizes YesUp to transfer such information to any Group Companies and any agent, contractor or third party service provider for the purposes of credit verification, administration, marketing promotions, data processing, customer services or otherwise to perform its obligations or enforce its rights under this Agreement, or for any other purpose incidental to or in contemplation thereof.

6.14 The Subscriber authorizes YesUp or grants YesUp the consent to access or examine the Subscriber Content, and at YesUp’s absolute discretion, remove or disable access to the Subscriber Content and the Subscriber Website, which YesUp considers in its sole opinion to have had in breach of the Applicable Law or the Acceptable Use Policy.

6.15 Subscriber shall comply with the General Terms and Conditions, Special Terms and Conditions, Acceptable Use Policy (if any) of the Services as published or posted on Yeusp’s Website. YesUp may at any time and at its absolute discretion amend or vary the terms of the General Terms and Conditions, Special Terms and Conditions, Acceptable Use Policy of the Services by giving the Subscriber not less than thirty [30] days’ prior written notice of such amendments or variations. For the purpose of this Clause, publication or posting of such amendments or variations on YesUp’s Website or by e-mail to the Subscriber shall constitute written notice. The revised or amended terms will take effect when they are posted on YesUp’s Website.

6.16 The Subscriber shall comply with the terms and conditions of the software licenses granted by YesUp to the Subscriber and shall indemnify YesUp against all claims, actions, expenses, losses and liabilities arising from a breach or non-observance of any term or condition of such software licenses.

6.17 If for any reason YesUp is unable to provide the Services (or any part thereof), the Subscriber hereby authorizes YesUp (i) to apply and obtain on behalf of the Subscriber and in the Subscriber’s name the relevant Services (or part thereof) from the affiliates and/or business partners of YesUp (as the case may be); and (ii) to invoice and collect fees from the Subscriber for that Services (or part thereof) on behalf of the affiliates and/or business partners of YesUp.

7 Suspension of Services

7.1 YesUp may at its absolute discretion, without terminating this Agreement and without liability, immediately suspend part or all of the Services at any time until further notice if:

7.1.1 YesUp is permitted to terminate this Agreement under Clause 10.3 or 10.4. below; or

7.1.2 the Subscriber fails to make any payments due to YesUp under this Agreement; or

7.1.3 Yeusp is obliged to comply with an order, instruction or request of government, regulatory body or other competent authority; or

7.1.4 YesUp reasonably suspects that the Subscriber is in breach of, or will breach the Acceptable Use Policy;

7.1.5 YesUp reasonably believes or suspects that the provisions of the Services would cause YesUp to contravene any Applicable Law or breach this Agreement;

7.1.6 YesUp is in the reasonable opinion of YesUp believed it is necessary to suspend the Services in order to reduce or prevent fraud or interference with the Services; or

7.1.7 YesUp needs to maintain or upgrade the System (in which case YesUp will give the Subscriber notice where practicable in the circumstances); or

7.1.8 YesUp needs to repair a fault in the System as a result of any unplanned outage, downtime or other reasons beyond YesUp’s control (in which case the Subscriber acknowledges that YesUp may not be able to give the Subscriber any notice).

7.2 YesUp shall not be liable to the Subscriber, or any person claiming through the Subscriber, in contract, tort or otherwise (including negligence) for any loss or damage arising from suspension of the Services under this Agreement.

7.3 If YesUp suspends such Services due to any event in Clause 7.1.1 above,

7.3.1 this shall be without prejudice to any other remedy available to YesUp under this Agreement and does not constitute a waiver of |YesUp’s right to terminate this Agreement later in respect of the same or any other event; and

7.3.2 the Subscriber shall, in addition to paying all overdue Charges, be liable to pay YesUp a reactivation fee as may be notified by YesUp from time to time to restore or reactivate such Services; and

7.3.3 the Subscriber acknowledges that restoration or reactivation of the Services may take up to thirty [30] days after receipt by YesUp of payment of the reactivation fee and all overdue Charges.

7.4 Without prejudice to YesUp ’s rights to terminate this Agreement earlier pursuant to other clauses of this Agreement (including, without limitation, clause 10.4.1), YesUp shall be entitled to terminate this Agreement if the Services are suspended pursuant to clause 8.1 above for more than 10 days.

7.5 For the Subscriber who continues using or subscribing the Services after the expiration of the Initial Term, the Subscriber shall be liable to pay YesUp the Suspension Administration Fee if YesUp exercises its right to terminate this Agreement in accordance with Clauses 8.4, only to the extent when the suspension is made pursuant to Clauses 7.1.1 (only apply to termination made under Clause 10.3), 7.1.2, 7.1.4, 7.1.5 or 7.1.6.

7.6 YesUp shall be entitled to charge the Subscriber Suspension Administration Fee if YesUp exercises its right to terminate this Agreement in accordance with Clauses 7.4, only to the extent when suspension is made pursuant to Clauses 7.1.1 (only apply to termination made under Clause 10.3), 7.1.2, 7.1.4, 7.1.5 or 7.1.6, on the last one month prior to the expiration of the Initial Term.

8. Intellectual Property

The Subscriber warrants that it holds all necessary or desirable rights, licenses and other permissions in respect of all contents which it uploads to the Internet. The Subscriber hereby grants to YesUp a non-exclusive and royalty free license for the term of this Agreement to reproduce, publish, copy, transmit and otherwise use such contents for the purpose of providing the Services.

9. Service Cancellation before Commencement Date

If the Subscriber cancels or terminates the Service before Commencement Date for any reason, the Subscriber shall be liable to pay YesUp as liquidated damages a sum equals to one month subscription fee of the Service and any extra costs incurred by YesUp for such cancellation.

We offer a 7 day money back guarantee on all Pre-Built/Ready-2-Go servers. If you cancel your account within 7 day of first signing up, we will provide you with a full refund. 7 day money back guarantee does not apply on all custom build servers. Also a customer whose account exceeds the included bandwidth will be required to pay any additional bandwidth accrued.

If a Subscriber requests for a cancellation and refund on their prepayment plan and is not within the first 7 days of first signing on, current month will be charged and the balance amount will be refunded, as a credit on their YesUpHost account.

Any customer who has received a refund in the past, or has been a customer in the past 90 days is not eligible for the YesUphost.com 7 day Money Back Guarantee.

For cancellation, we never accept any ticket cancellation. Client must press the cancellation button through their account area.

10. Termination

10.1 The Subscriber may at any time after the expiry of the Initial Term terminate this Agreement by giving not less than two (2) months’ prior written notice to YesUp.

10.2 YesUp may terminate this Agreement at any time by giving not less than one (1) month’s prior written notice to the Subscriber.

10.3 Yeusp may at any time terminate this Agreement forthwith on notice to the Subscriber if the Subscriber is in breach of Clause 6.3, 6.4, 6.5, 6.6, 6.7, 6.8, 6.9, 6.10 or 6.16 above.

10.4 Without prejudice to any other rights or remedies it may have (whether under this Agreement or at law), either party may terminate this Agreement immediately by serving written notice on the other if:

10.4.1 the other party commits a breach of any material obligation under this Agreement and, in the case of a remediable breach, fails to remedy the breach after receiving fourteen[14] days’ written notice to do so. For these purposes, a failure by the Subscriber to pay any Charges within five [5] days after they become due will constitute a material breach; or

10.4.2 the other party becomes Insolvent.

10.5 In this Clause, “Insolvent” means the appointment of, or the application to a court for the appointment of, a liquidator, provisional liquidator, receiver or manager to that party, the entering into a scheme of arrangement or composition with or for the benefit of that party’s creditors generally, any reorganization, moratorium or other administration involving the creditors or any class of the creditors of that party, a resolution or proposed resolution to wind up that party, or that party becoming unable to pay its debts, or being deemed to have become unable to pay its debts, as and when they fall due within the meaning of Section 178 of the Companies Ordinance (Cap.32).

11. Consequences of Termination

11.1 Termination of this Agreement will not relieve either party of any liability for breach of this Agreement or as may otherwise be established.

11.2 The provisions of, including but not limited to, Clauses 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 and 21 of this Agreement will continue in force despite the termination of this Agreement.

11.3 Within not more than thirty [30] days after termination of this Agreement for any reason, the Subscriber shall give personnel of YesUp or its agents full and free access to its premises to repossess any Equipment and software provided by YesUp . The Subscriber will return Equipment to YesUp in the same condition in which it was provided to the Subscriber (fair wear and tear excepted).

11.4 The Subscriber acknowledges that YesUp shall be entitled to pass the Subscriber’s information to its debt collection agents if YesUp terminates this Agreement as a result of the Subscriber’s failure to pay any Charges due to YesUp under this Agreement.

12. Limitation of Liability

12.1 Nothing in this Agreement will exclude or restrict either party’s liability for death or personal injury resulting from its negligence or for fraud that of its employees while acting in the course of their employment.

12.2 Subject to Clause 12.1 above, |Yersupt’s liability in contract, tort or otherwise (including negligence) however arising out of or in connection with this Agreement will in respect of any one or more incidents not exceed the total Charges received by YesUp from the Subscriber in the month in which the incident occurs.

12.3 Subject to the express terms of this Agreement YesUp will not be liable to the Subscriber for any indirect or consequential loss, whether arising from negligence, breach of contract or tort (including but not limited to negligence)

12.4 To the extent permitted by law, YesUp , its Group Companies and any third party service provider of the Services, together with their respective directors, employees or agents expressly disclaim any liability for:

12.4.1 any representation or warranty, whether express or implied under or in relation to this Agreement, relating to the performance of its obligations under this Agreement or any activity contemplated by this Agreement;

12.4.2 any damage to or loss of data, voice or other information, YesUpHost will not hold responsible. The customer is ultimately responsible for the data integrity, data security, back-up and ownership of data; and any loss that may arise due to loss of data;

12.4.3 any claim based on contract, tort, or otherwise for any direct or indirect loss of revenue, profits or any consequential loss whether of an economic nature or any such loss which the Subscriber suffers as a result of any error, inaccuracy or computer virus in or introduced into the Subscriber’s computer system or other devices by, through or in connection with the use of the Services, software or Equipment;

12.4.4 any claim relating to the Services and/or any content, software or Equipment supplied, provided, sold or made available by or through the Services (or any failure or delay to so supply, provide, sell or make available);

12.4.5 any disruption or suspension or degradation of the Services or any part thereof;

12.4.6 any damage which is attributable to an event or circumstance beyond YesUp’s control (“Force Majeure Event”). A Force Majeure Event includes but is not limited to acts of God, war, civil disobedience, explosion, fire, flood, governmental action, legislation not in force at the time of this Agreement, restraints imposed by government or any other regulatory authorities, labour disputes, trade disputes or delays of third parties over which YesUp has no control.

13. Notification of Violation

13.1 YesUpHost is under no duty to look at each Subscriber’s activities to determine if a violation of the AUP has occurred, nor do we assume any responsibility through our AUP to monitor or police Internet-related activities.

13.2 Any Subscriber of first violation, which YesUpHost determines to have violated any element of this Acceptable Use Policy, shall receive an email, warning them of the violation. The service may be subject at YesUpHost discretion to a temporary suspension pending a User’s agreement in writing, to refrain from any further violations.

13.3 Any Subscriber of second violation that YesUpHost determines to have committed a second violation of any element of this Acceptable Use Policy shall be subject to immediate suspension or termination of service without further notice.

13.4 We reserve the right, to drop the section of IP space involved in Spam or Denial-of-Service complaints if it is clear that the offending activity is causing great harm to parties on the Internet. In particular, if open relays are on your network or a customer’s network, or if denial of service attacks are originating from your network. In certain rare cases, we may have to do this before attempting to contact you. If we do this, we will contact you as soon as is feasible.

14. Indemnities

4.1 The Subscriber shall indemnify YesUp , and keep YesUp indemnified, from and against any and all actions, claims, costs (including but not limited to legal costs), losses, damages and expenses arising out of the Subscriber’s use of the Services or relating to the Subscriber’s breach of any term of this Agreement or warranties and undertakings under this Agreement.

14.2 The Subscriber shall indemnify, and keep YesUp indemnified, from and against all claims, proceedings and costs (including legal costs) arising from or any part of the Subscriber Website, the Subscriber Equipment, the Subscriber Service and the Subscriber Content , including but not limited to, infringement or alleged infringement of any third party Intellectual Property Rights, defamation or misappropriation of trade secrets, by reason of |YesUp’s provision of the Services.

15. Warranties

5.1 No warranties or representation are given by YesUp in relation to the Services or the use thereof by the Subscriber and YesUp gives no guarantee of end to end bandwidth capacity or availability on the Internet. To the extent permitted by law, YesUp excludes all implied warranties including, without limitation, as to quality and fitness for purpose of the Services.

15.2 No oral or written information given by YesUp , its employees, affiliates, or agents shall create a warranty or binding representation. The Subscriber acknowledges that it has not and will not rely on such information.

16. Assignment

The Subscriber shall not assign its rights under this Agreement, in whole or in part, without the prior written consent of YesUp . YesUp may assign its rights under this Agreement at any time.

17. Notices

17.1 Any notice, bill statement or other document which may be given by either party under this Agreement will be deemed to have been duly given if left at or sent by prepaid post, facsimile transmission or electronic mail to the other party’s registered office or any other address (including an electronic mail address) notified in writing in accordance with this Clause as an address to which notices, bill statements and other documents may be sent.

17.2 Any such communication will be deemed to have been received by the other party on the day of delivery (if left), three (3) days after the date of posting (if sent by prepaid post), one (1) day after the date of transmission (if sent by facsimile) and on the date on which the message is received in the recipient’s electronic mailbox (if sent by electronic mail).

18. Waiver

Failure or delay by YesUp to enforce any of its rights under this Agreement or the giving of additional time for performance or other indulgence is not a waiver of such right unless YesUp acknowledges the waiver in writing, nor will any single or partial exercise of any right or remedy preclude any further exercise of the same or the exercise of any other right. No waiver of any particular breach of the provisions of this Agreement will operate as a waiver of any repetition of such breach.

19. Severability

If any provision of this Agreement is found to be unenforceable or illegal, it shall be severed from this Agreement and will not affect the enforceability of the remainder of this Agreement. In this event the parties will use reasonable endeavors to agree any lawful and reasonable changes to this Agreement which may be necessary to effect as closely as possible the commercial intent of this Agreement.

20. Amendments

YesUp may at any time and at its absolute discretion amend or vary the terms of this Agreement, the Services provided under this Agreement and any Charges therefore by giving the Subscriber not less than thirty [30] days’ prior written notice of such amendments or variations. By continuing to use the Services without making any objection to such amendments or variations within thirty [30] days of such notice, the Subscriber is deemed to accept the same. For the purposes of this Clause, publication or posting of such amendments or variations on YesUp ’s Website or by e-mail to the Subscriber shall constitute written notice.

21. Entire Agreement

This Agreement represents the entire agreement between the parties in relation to the subject matter herein, and supersedes all prior agreements between the parties whether oral or written.

22. Others

22.1 These terms and conditions shall be subject to the Special Terms and Conditions (if any) of the Service and if there is any inconsistency between them, such Special Terms and Conditions shall prevail to the extent of such inconsistency.

22.2 YesUp shall not be a party to any transaction made by the Subscriber and any third party through the use of the Services.

22.3 Neither party is an agent, joint venture or partner with the other, and neither party shall have authorities to legally bind the other in any manner.

22.4 Please note that we send all new members a verification email to verify password and username. By submitting your email to us when you create an account, your email will be added within our opt-in email contact list. Members will receive periodic emails with information such as newsletters, email promotions on products or services, or special deals, from YesUpHhost, as well as any companies affiliated with YesUpHost as well. If you wish to stop receiving these emails, you can click on the unsubscribe link that’s included with every email or contact us directly.

23. Compliance with Law

Both signed parties shall comply with all laws, orders, ordinances and other public requirements now or hereafter affecting the agreement.