Company shall mean:

Gold Smith Works
CorporateHosting.Org
eStoreMenu.Com
MenuBuilder.Net
YouthMenu.Com
eStoreMall.Net
MenuMerchant.Com - Net
MerchantMenu.Net
eStoreCafe.Com
eStoreDomain.Com
eStoreAuction.Com

TERMS OF SERVICE

Version 1.0

1. Order, Acceptance and Service. The Order submitted by Customer creates a contract between Customer and Gold Smith Works when Gold Smith Works provides the Services requested in the Order. Such contract consists of the Order, the applicable Service Description and these Terms of Service.
   
   
2. Fees, Taxes and Payment. Gold Smith Works will provide, and Customer will purchase and pay for, the Services specified in the Order for the service fees specified in the Order and the applicable Service Description (the "Service Fees"). The Service Fees do not include any applicable sales, use, revenue, excise or other taxes imposed by any taxing authority with respect to the Services or any software provided hereunder (excluding any tax on Gold Smith Works 's net income). All such taxes will be added to Gold Smith Works 's invoices for the Service Fees as separate charges to be paid by Customer. All fees are fully earned when due and non-refundable when paid. Unless otherwise specified, invoices for the Service Fees and related charges shall be due and payable within 30 days after the date of the invoice. Any amounts payable to Gold Smith Works not paid when due will bear interest at the rate of one and one half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less. If Gold Smith Works collects any payment due at law or through an attorney at law or under advice therefrom or through a collection agency, or if Gold Smith Works prevails in any action to which the Customer and Gold Smith Works are parties, Customer will pay all costs of collection, arbitration and litigation, including, without limitation, all court costs and Gold Smith Works 's reasonable attorneys' fees. If any check is returned for insufficient funds Gold Smith Works may impose a processing charge of \$25. Gold Smith Works may increase the Service Fees (i) in the manner permitted in the Service Description and (ii) at any time by providing fourteen (14) days prior written notice thereof to Customer.
   
   
3. Using Checks Rather Than Credit Cards For Service Fees
   
   1. All members and clients must receive prior approval for using Checks for Payment.
   2. All Monthly, Quarterly, Six Month and Yearly  Billing will be under the direction of Members and Clients. The Member and/or Client must submit the check and insure it arrives ten days before due date.
   3. The Company and/or Rock Scarfone, will not send invoices, rather, at http://menubuilder.net/billing , there is an automated online billing program that automatically sends invoices and charges credit cards. It will advise YOU of your Billing Due even if you are on Check Privilege, you may use your admin and pass to track and keep on top of your billing. But, in the case of CHECKS, YOU must make sure YOU send YOUR CHECK.
   4. The Member/Client IS responsible for NOTIFYING the Company or Rocky Scarfone for any miss-billing overcharges and under-charges by e mail or call 800-438-6894. We will only invoice additions or subtractions of service.      

   
   

4. Term and Termination.
   
   
   1. Hosting Services will commence on the date on which Gold Smith Works provides the Services requested in the Order (the "Effective Date") and continue until terminated in accordance with this Agreement. Either party may terminate Service at any time with at least thirty (30) days prior written notice to the other party.
      
      
   2. Either party may terminate this Agreement immediately upon the occurrence of any one or more of the following events: (i) the other party fails to pay when due any amounts required to be paid under this Agreement; (ii) the other party breaches any material term or provision of this Agreement (other than a breach described in subsection (i) above), and if capable of cure, such breach remains uncured 30 days after the non-breaching party gives written notice thereof to the breaching party; or (iii) the other party becomes insolvent, makes an assignment for the benefit of its creditors, institutes or becomes subject to any proceeding under any bankruptcy or similar laws for the relief of debtors, or seeks the appointment of, or becomes subject to the appoint of, any trustee or receiver for all or any portion of such party's assets.
      
      
   3. Gold Smith Works may terminate this Agreement (i) if the Services are prohibited by applicable law, or become impractical or unfeasible for any technical, legal or regulatory reason, by giving Customer as much prior notice as reasonably practicable or (ii) immediately by giving written notice to Customer, if Gold Smith Works determines in good faith that Customer's use of the Customer Web site or the Customer Content violates the Acceptable Use Policy.
      
      
   4. Upon termination of this Agreement for any cause or reason whatsoever, neither party shall have any further rights or obligations under this Agreement, except as expressly set forth herein. The provisions of Sections 3(d), 4, 8, 10, 11, 13 and 15 of this Agreement shall survive the expiration or termination of this Agreement for any cause or reason whatsoever, and, notwithstanding the expiration or termination of this Agreement, the parties shall each remain liable to the other for any indebtedness or other liability theretofore arising under this Agreement. Termination of this Agreement and retention of pre-paid fees and charges shall be in addition to, and not be in lieu of, any other legal or equitable rights or remedies to which Gold Smith Works may be entitled.
      
   5. All services are contracted for the terms as laid out in services. All Contracted services will be automatically renewed 10 days before due date and cannot be canceled unless notice is given ten days before due date.   Dedicated clients must agree to a ONE YEAR contract on all dedicated servers.  
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   6. All Maintenance and/or Update Agreements are to be paid in full irregardless that the customer does not respond to requests for content, including information, media, graphics, text or html. The maintenance or update agreement will continue and will end on the specified time period that is in the agreement with no obligation for Gold Smith Works to perform any maintenance or updates beyond the date of the agreement ending.
      
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5. Customer's Representations and Warranties. Customer hereby represents and warrants to Gold Smith Works , and agrees that during the Term Customer will ensure that: (a) Customer is the owner or valid licensee of the Customer Content and each element thereof, and Customer has secured all necessary licenses, consents, permissions, waivers and releases for the use of the Customer Content and each element thereof, including without limitation, all trademarks, logos, names and likenesses contained therein, without any obligation by Gold Smith Works to pay any fees, residuals, guild payments or other compensation of any kind to any Person; (b) Customer's use, publication and display of the Customer Content will not infringe any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any Person, or constitute a defamation, invasion of privacy or violation of any right of publicity or any other right of any Person, including, without limitation, any contractual, statutory or common law right or any "moral right" or similar right however denominated; (c) Customer will comply with all applicable laws, rules and regulations regarding the Customer Content and the Customer Web site and will use the Customer Web site only for lawful purposes; (d) Customer has used its best efforts to ensure that the Customer Content is and will at all times remain free of all computer viruses, worms, trojan horses and other malicious code; and (e) Customer will use the Services only for business purposes and not for any family, household or personal use.
   
   
6. License to Gold Smith Works Customer hereby grants to Gold Smith Works a non-exclusive, royalty-free, worldwide right and license during the Term to do the following to the extent necessary in the performance of Services under the Order: (a) digitize, convert, install, upload, select, order, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit, distribute, publish, publicly display, publicly perform and hyperlink the Customer Content; and (b) make archival or back-up copies of the Customer Content and the Customer Web site. Except for the rights expressly granted above, Gold Smith Works is not acquiring any right, title or interest in or to the Customer Content, all of which shall remain solely with Customer.
   
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7. Gold Smith Works 's Acceptable Use Policy. Customer will abide by, and utilize the Services and the Customer Web site only in accordance with, the Acceptable Use Policy (the "Acceptable Use Policy") that Gold Smith Works posts on its Web site, as such Acceptable Use Policy may be changed by Gold Smith Works from time to time. The Acceptable Use Policy is hereby incorporated herein and made a part hereof by this reference. Customer shall impose the Acceptable Use Policy on its customers and End Users to the extent necessary to ensure their compliance. Customer shall familiarize itself with the Acceptable Use Policy and periodically access Gold Smith Works 's Web site to determine if Gold Smith Works has made any changes thereto.
   
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8. Customer's Responsibilities.
   
   
   1. Customer is solely responsible for the quality, performance and all other aspects of the Customer Content and the goods or services provided through the Customer Web site.
      
      
   2. Customer will cooperate fully with Gold Smith Works in connection with Gold Smith Works 's performance of the Services. Customer must provide content, information, pictures, images, media, equipment or software that may be necessary for Customer to use in any Maintenance and/or Update agreement and/or any Services. Delays in Customer's performance of its obligations under this Agreement will not cause Gold Smith Works to refund any payment or cancel any payment program. Any delays in Customer's performance may, at Gold Smith Works favor, extend the time for Gold Smith Works 's performance of its obligations that depend on Customer's performance on a day for day basis. Customer will notify Gold Smith Works of any change in Customer's mailing address, telephone, e-mail or other contact information.
      
      
   3. Customer assumes full responsibility for providing End Users with any required disclosure or explanation of the various features of the Customer Web site and any goods or services described therein, as well as any rules, terms or conditions of use.
      
      
   4. Customer will provide Gold Smith Works with a registered domain name for the Customer Web site, or, upon Customer's request and subject to Gold Smith Works 's Domain Name Registration Terms and Conditions domain agreement, the provisions of which are incorporated herein by this reference, Gold Smith Works will register an Internet domain name on behalf of Customer,or lease a name to the customer.
      
      
   5. Because the Hosting Services permit Customer to electronically transmit or upload content directly to the Customer Web site, Customer shall be fully responsible for uploading all content to the Customer Web site and supplementing, modifying and updating the Customer Web site. Customer is also responsible for ensuring that the Customer Content and all aspects of the Customer Web site are compatible with the hardware and software used by Gold Smith Works to provide the Hosting Services, as the same may be changed by Gold Smith Works from time to time. Specifications for the hardware and software used by Gold Smith Works to provide the Hosting Services will be available on Gold Smith Works 's Web site. Customer shall periodically access Gold Smith Works 's Web site to determine if Gold Smith Works has made any changes thereto. Gold Smith Works shall not be responsible for any damages to the Customer Content, the Customer Web site or other damages or any malfunctions or service interruptions caused by any failure of the Customer Content or any aspect of the Customer Web site to be compatible with the hardware and software used by Gold Smith Works to provide the Hosting Services.
      
      
   6. Even though Gold Smith Works performs backups, as described in the applicable Service Description, Customer is solely responsible for making back-up copies of the Customer Web site and Customer Content. Restoring Gold Smith Works Backups may include a fee for said service.
      
   7. Maintenance agreements are non-refundable. It is up to Customer to supply requested content, information and other material to utilize for updates if you have an update agreement..
      
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   8. Failure to make a payment on any payment plan for Services, including Dedicated Servers, Maintenance and/or Update Agreements, and/or Server or Site Administration agreements will cause all past due and/or future payments to become due in full. It will be at Gold Smith Works option to provide any  further work, update maintenance or administration, and, this may be cause to cancel Customers account.  
      
      
9. Gold Smith Works Intellectual Property.
   
   
   1. Gold Smith Works hereby grants to Customer a non-exclusive, non-transferable, royalty-free license, exercisable solely during the term of this Agreement, to use applicable Gold Smith Works Technology solely for the purpose of accessing and using the Services. Customer may not use the Gold Smith Works Technology for any purpose other than accessing and using the Services. Except for the rights expressly granted above, this Agreement does not transfer from Gold Smith Works to Customer any Gold Smith Works Technology, and all rights, titles and interests in and to the Gold Smith Works Technology shall remain solely with Gold Smith Works Customer shall not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any of the Gold Smith Works Technology.
      
      
   2. Gold Smith Works 's trademarks, tradenames, service marks, logos, other names and marks, and related product and service names, design marks and slogans are the sole and exclusive property of Gold Smith Works Customer may not use any of the foregoing in any advertising, publicity or in any other commercial manner without the prior written consent of Gold Smith Works Gold Smith Works shall maintain and control ownership of all Internet protocol numbers and addresses that may be assigned by Gold Smith Works to Customer. Gold Smith Works may, in its sole discretion, change or remove any and all such Internet protocol numbers and addresses.
      
      
   3. Any feedback, data, answers, questions, comments, suggestions, ideas or the like which Customer sends to Gold Smith Works relating to the Services will be treated as being non-confidential and non-proprietary. Gold Smith Works may use, disclose or publish any ideas, concepts, know-how or techniques contained in such information for any purpose whatsoever.
      
      
10. Limited Warranty.
    
    
    1. Gold Smith Works represents and warrants to Customer that the Services will be performed (i) in a manner consistent with industry standards reasonably applicable to the performance thereof; (ii) at least at the same level of service as provided by Gold Smith Works generally to its other customers for the same services; and (iii) in compliance in all material respects with the applicable Service Descriptions. Customer will be deemed to have accepted such Services unless Customer notifies Gold Smith Works within 30 days after performance of any Services of any breach of the foregoing warranties. Customer's sole and exclusive remedy, and Gold Smith Works 's sole obligation, for breach of the foregoing warranties shall be for Gold Smith Works , at its option, to re-perform the defective Services at no cost to Customer, or, in the event of interruptions to the Services caused by a breach of the foregoing warranties, issue Customer a credit in an amount equal to the current monthly Service Fees pro rated by the number of hours in which the Services have been interrupted. Gold Smith Works may provision the Services from any of its data centers and may from time to time re-provision the Services from different data centers.
       
       
    2. The foregoing warranties shall not apply to performance issues or defects in the Services (i) caused by factors outside of Gold Smith Works 's reasonable control; (ii) that resulted from any actions or inactions of Customer or any third parties; or (iii) that resulted from Customer's equipment or any third-party equipment not within the sole control of Gold Smith Works
       
       
    3. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 9, Gold Smith Works MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR ANY SOFTWARE PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND Gold Smith Works HEREBY EXPRESSLY DISCLAIMS THE SAME. WITHOUT LIMITING THE FOREGOING, ANY THIRD-PARTY SOFTWARE PROVIDED TO CUSTOMER HEREUNDER IS PROVIDED "AS IS" WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. Gold Smith Works DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.
       
       
11. Limitation of Liability.
    
    
    1. IN NO EVENT WILL Gold Smith Works 's LIABILITY IN CONNECTION WITH THE SERVICES, ANY SOFTWARE PROVIDED HEREUNDER OR ANY ORDER, WHETHER CAUSED BY FAILURE TO DELIVER, NON-PERFORMANCE, DEFECTS, BREACH OF WARRANTY OR OTHERWISE, EXCEED THE AGGREGATE SERVICE FEES PAID TO Gold Smith Works BY CUSTOMER DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
       
       
    2. Gold Smith Works CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME, INTEGRITY OF DATA, INFORMATION OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET. Gold Smith Works WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION OR INADVERTENT DISCLOSURE OF, DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED ON ITS SYSTEM.
       
       
    3. EXCEPT AS EXPRESSLY PROVIDED BELOW, NEITHER PARTY SHALL BE LIABLE IN ANY WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF ANY ORDER, OR (EXCEPT AS PROVIDED IN SECTIONS 11 AND 12) FOR ANY CLAIM AGAINST THE OTHER PARTY BY A THIRD PARTY, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES.
       
       
    4. The limitations contained in this Section 10 apply to all causes of action in the aggregate, whether based in contract, tort or any other legal theory (including strict liability), other than claims based on fraud or willful misconduct. The limitations contained in Section 10(c) shall not apply to liability arising on account of a party's breach of Section 13 or to Customer's indemnification obligations under Section 11.
       
       
12. Indemnification of Gold Smith Works and "COMPANY". Customer shall defend, indemnify and hold harmless Gold Smith Works , its affiliates and their respective present, former and future officers, directors, employees and agents, and their respective heirs, legal representatives, successors and assigns (collectively the "Gold Smith Works /COMPANY Indemnitees"), from and against any and all losses, damages, costs, liabilities and expenses (including, without limitation, amounts paid in settlement and reasonable attorneys' fees) which any of the Gold Smith Works Indemnitees may suffer, incur or sustain resulting from or arising out of (i) Customer's breach of any representation, warranty, or covenant contained in the Agreement, (ii) the Customer Content, the Customer Web site or any End User's use of the Customer Content or the Customer Web site, (iii) violation by Customer or any of its officers, directors, employees or agents of the Acceptable Use Policy or any applicable law, (iv) claims or actions of third parties alleging misappropriation of trade secrets or infringement of patents, copyrights, trademarks or other intellectual property rights arising from the use, display or publication of Customer's domain names, the Customer Web site, the Customer Content, or the use of the Services in combination with hardware, software or content not provided by Gold Smith Works , (v) claims or actions by third parties relating to or arising out of Customer's use of the Services, and (vi) any failure of the Customer Content or any aspect of the Customer Web site to be compatible with the hardware or software used by Gold Smith Works to provide the Services, including any damage to Gold Smith Works 's servers or other hardware caused thereby.
    
    
13. Indemnification of Customer.
    
    
    1. Subject to Section 10, Gold Smith Works shall, at its own expense, indemnify, defend and hold Customer harmless from any claim or suit alleging that the Services infringe any United States patent, copyright or trademark existing on the Effective Date, or that Gold Smith Works has knowingly misappropriated any trade secret or other intellectual property right of any other Person, including any losses, damages or expenses arising from any such claim or suit. Customer agrees to cooperate with and assist Gold Smith Works in the defense or settlement of any such claim or suit. Customer shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation or assistance requested by Gold Smith Works , but Gold Smith Works will not be liable for any costs or expenses incurred without its prior written authorization.
       
       
    2. Promptly after receipt by Customer of a threat of any claim or suit, or a notice of the commencement or filing of any claim or suit, against which Customer may be indemnified hereunder, Customer shall give written notice thereof to Gold Smith Works , provided that failure to give or delay in giving such notice to Gold Smith Works shall not relieve Gold Smith Works of any liability it may have to Customer hereunder, except to the extent that the defense of such claim or suit is prejudiced thereby. Gold Smith Works shall have sole control of the defense, and of all negotiations for settlement, of such claim or suit. Subject to the foregoing, Customer may participate in the defense of any such claim or suit at Customer's own expense.
       
       
    3. If an injunction, decree or judgment is, or Gold Smith Works believes in its sole discretion is likely to be, entered providing that Customer may not use the Services as contemplated in this Agreement without violating the intellectual property rights of a third party, Gold Smith Works may, at its sole option and expense, either (i) procure for Customer the right to use the Services or affected part thereof as provided in this Agreement; (ii) replace the Services or affected part thereof with other non-infringing services or modify the Services or affected part thereof so as to be non-infringing; or (iii) terminate this Agreement upon written notice to Customer.
       
       
    4. Notwithstanding Section 12(a), Gold Smith Works assumes no liability for infringement claims arising from (i) use of the Services with third-party products or services where the third-party products or services cause the infringement, (ii) any modification of the Services not authorized by Gold Smith Works in writing, (iii) the Customer Content, the Customer Web site or any content, data or information provided or supplied by an End User, or (iv) Customer's use of any third-party software provided hereunder. THE FOREGOING DEFENSE AND INDEMNIFICATION PROVISIONS STATE THE ENTIRE LIABILITY AND OBLIGATION OF Gold Smith Works , AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT BY THE SERVICES PROVIDED HEREUNDER.
       
       
14. Confidentiality; Non-Solicitation.
    
    
    1. Each party will not, without the prior written consent of the other party, use or disclose to any Person any Proprietary Information of the other party disclosed or made available to it, except for use of such Proprietary Information as required in connection with the performance of its obligations or use of the Services hereunder. Subject to Section 13(b), each party will (i) treat the Proprietary Information of the other party as secret and confidential, (ii) limit access to the Proprietary Information of the party to those of its employees who require it in order to effectuate the purposes of this Agreement, and (iii) not disclose the Proprietary Information of the other party to any other Person without the prior written consent of the other party.
       
       
    2. Notwithstanding Section 13(a), the following shall not be considered Proprietary Information: (i) any information that the receiving party can demonstrate by written documentation was within its legitimate possession prior to the time of disclosure by the disclosing party; (ii) any information that was in the public domain prior to disclosure by the disclosing party as evidenced by documents that were published prior to such disclosure; (iii) any information that, after disclosure by the disclosing party, comes into the public domain through no fault of the receiving party, (iv) any information that is disclosed to the receiving party without restriction by a third party who has legitimate possession thereof and the legal right to make such disclosure; or (v) any information that, two years after expiration or termination of this Agreement, does not constitute a trade secret under applicable law.
       
       
    3. Each party acknowledges that disclosure of any aspect of the Proprietary Information of the other party shall immediately give rise to continuing irreparable injury to the other party inadequately compensable in damages at law, and, without prejudice to any other remedy available to the other party, shall entitle the other party to injunctive or other equitable relief. Upon expiration or termination of this Agreement for any reason, each party shall promptly return to the other party all Proprietary Information of the other party (including all copies thereof) in its possession or control.
       
       
    4. During the term of this Agreement and for two years following expiration or termination of this Agreement, Customer will not, directly or indirectly, solicit or recruit the services of any employee of Gold Smith Works performing services under this Agreement, while such employee is employed by Gold Smith Works and for a period of six months after such employee has left the employment of Gold Smith Works
       
       
15. Optional Services. In connection with any Optional Services:
    
    
    1. Customer must provide Gold Smith Works with any information, content, images, logos, media, login identifications, passwords or other information or access to facilities that Gold Smith Works may reasonably require to provide the Optional Services Gold Smith Works will have no responsibility for any delays or increased costs or expenses associated with Customer's failure to provide any of such information. If Customer does not provide any such information or access requested by Gold Smith Works within fifteen (15) days of Gold Smith Works 's request therefor, Gold Smith Works may terminate the Order and retain any Service Fees paid.
       
       
    2. If Customer requested that Gold Smith Works perform the Optional Services by a particular deadline or that Gold Smith Works achieve some particular result or outcome, Gold Smith Works will use commercially reasonable best efforts to perform the Services by any such deadline and achieve the result requested by Customer; provided, however, that (i) Gold Smith Works 's ability to perform the Services is subject to Customer's provision of information, content, images, logos, media, login identifications, passwords or other information or access as provided above and (ii) Gold Smith Works has no liability or obligation to complete the Services by any deadline or achieve any particular outcome or result.
       
       
    3. If Customer wishes to convey documents or files to Gold Smith Works , Customer should deliver to Gold Smith Works a copy or duplicate of such documents or files and not the original copy. These may be mailed, delivered by courier or emailed to Gold Smith Works.   Gold Smith Works will not return to Customer any documents or files conveyed to Gold Smith Works.
       
       
    4. Gold Smith Works will have no liability or responsibility for any damage, loss of data, loss of use or other loss occurring in connection with Gold Smith Works 's provision of Optional Services requested by Customer.
       
       
16. Miscellaneous.
    
    
    1. Independent Contractor. Gold Smith Works and Customer are independent contractors and nothing contained in this Agreement places Gold Smith Works and Customer in the relationship of principal and agent, master and servant, partners or joint venturers. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.
       
       
    2. Governing Law; Jurisdiction. Any controversy or claim arising out of or relating to this Agreement, the formation of this Agreement or the breach of this Agreement, including any claim based upon arising from an alleged tort, shall be governed by the substantive laws of the State of Georgia, except that all arbitration and related proceedings conducted pursuant to Section 15(c) below, including without limitation confirmation proceedings, shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1, et. seq. . The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. ANY SUIT, ACTION OR PROCEEDING CONCERNING THIS AGREEMENT THAT IS NOT SUBJECT TO MANDATORY ARBITRATION PURSUANT TO SECTION 15(C) BELOW MUST BE BROUGHT IN A GEORGIA STATE OR FEDERAL COURT LOCATED IN FULTON COUNTY, GEORGIA, AND EACH OF THE PARTIES HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS (AND OF THE APPROPRIATE APPELLATE COURTS THEREFROM) IN ANY SUCH SUIT, ACTION OR PROCEEDING AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT ANY SUCH SUIT, ACTION OR PROCEEDING WHICH IS BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
       
       
    3. Mandatory Arbitration. Notwithstanding Section 15(b) above, each party agrees that any dispute between the parties arising out of this Agreement or in any manner relating to the Services must be submitted by the parties to arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, as administered by Resolutions Resources Corp. of Atlanta, Georgia (or such other recognized provider of arbitration services agreed upon by both parties) before a single arbitrator, appointed in accordance with such rules. Any such arbitrator must render a reasoned opinion in writing only where the amount in dispute exceeds \$100,000. Judgment upon the award may be entered in any court having jurisdiction thereof. Any such arbitration will be held in Atlanta, Georgia. Any action filed by either party in any court in violation of this Section should be dismissed pursuant to this Section.
       
       
    4. Headings. The headings herein are for convenience only and are not part of this Agreement.
       
       
    5. Entire Agreement; Amendments. This Agreement, including documents incorporated herein by reference, supersedes all prior discussions, negotiations and agreements between the parties with respect to the subject matter hereof, and this Agreement constitutes the sole and entire agreement between the parties with respect to the matters covered hereby. In case of a conflict between this Agreement and any purchase order, service order, work order, confirmation, correspondence or other communication of Customer or Gold Smith Works , the terms and conditions of this Agreement shall control. No additional terms or conditions relating to the subject matter of this Agreement shall be effective unless approved in writing by any authorized representative of Customer and Gold Smith Works This Agreement may not be modified or amended except by another agreement in writing executed by the parties hereto; provided, however, that these Terms of Service may be modified from time to time by Gold Smith Works in its sole discretion, which modifications will be effective upon posting to Gold Smith Works 's web site.
       
       
    6. Severability. All rights and restrictions contained in this Agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid or unenforceable. If any provision or portion of any provision of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect.
       
       
    7. Notices. All notices and demands required or contemplated hereunder by one party to the other shall be in writing and shall be deemed to have been duly made and given upon date of delivery if delivered in person or by an overnight delivery or postal service, upon receipt if delivered by facsimile the receipt of which is confirmed by the recipient, or upon the expiration of five days after the date of posting if mailed by certified mail, postage prepaid, to the addresses or facsimile numbers set forth below the parties' signatures. Either party may change its address or facsimile number for purposes of this Agreement by notice in writing to the other party as provided herein. Gold Smith Works may give written notice to Customer via e-mail to the Customer's e-mail address as maintained in Gold Smith Works 's billing records.
       
       
    8. Waiver. No failure or delay by any party hereto to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by any party preclude any other or further exercise thereof or the exercise of any other right or remedy. No express waiver or assent by any party hereto to any breach of or default in any term or condition of this Agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition hereof.
    9. Assignment; Successors. Customer may not assign or transfer this Agreement, or any of its rights or obligations hereunder, without the prior written consent of Gold Smith Works Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. Gold Smith Works may assign its rights and obligations under this Agreement, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without the consent of Customer. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
       
       
    10. Limitation of Actions. No action, regardless of form, arising by reason of or in connection with this Agreement may be brought by either party more than two years after the cause of action has arisen.
        
        
    11. Counterparts. If this Agreement is signed manually, it may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. If this Agreement is signed electronically, Gold Smith Works 's records of such execution shall be presumed accurate unless proven otherwise.
        
        
    12. Force Majeure. Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party's reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for such party to perform its obligations hereunder.
        
        
    13. No Third-Party Beneficiaries. Except as otherwise expressly provided in this Agreement, nothing in this Agreement is intended, nor shall anything herein be construed to confer any rights, legal or equitable, in any Person other than the parties hereto and their respective successors and permitted assigns. Notwithstanding the foregoing, Customer acknowledges and agrees that Microsoft, and any supplier of third-party supplier that is identified as a third-party beneficiary in the Service Description, is an intended third-party beneficiary of the provisions set forth in this Agreement as they relate specifically to its products or services and shall have the right to enforce directly the terms and conditions of this Agreement with respect to its products or services against Customer as if it were a party to this Agreement.
        
        
    14. Government Regulations. Customer may not export, re-export, transfer or make available, whether directly or indirectly, any regulated item or information to anyone outside the United States in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the United States government and any country or organization of nations within whose jurisdiction Customer operates or does business.
        
        
    15. Marketing. Customer agrees that during the term of this Agreement Gold Smith Works may publicly refer to Customer, orally and in writing, as a customer of Gold Smith Works Any other public reference to Customer by Gold Smith Works requires the written consent of Customer.
        
        
    16. Telephone Monitoring. To ensure Gold Smith Works 's customers receive quality service, Gold Smith Works randomly selects phone calls for monitoring. These calls, between Gold Smith Works 's customers and employees, are evaluated by supervisors. This is to guarantee that prompt, consistent assistance and accurate information is delivered in a professional manner. Gold Smith Works has been properly licensed by the Georgia Public Service Commission to use such service observing equipment.
        
        
17. Definitions. For purposes of this Agreement, the following terms have the meanings specified below:
    
    
    1. "Agreement" means each contract created between Gold Smith Works and Customer for the provision of Services consisting of an Order, the applicable Service Description and these Terms of Service.
       
       
    2. "Customer Content" means all data, graphics, text, names, marks, logos, hypertext links to other Web sites and other information incorporated in, transmitted through or published or displayed on the Customer Web site.
       
       
    3. "Customer Web site" means Customer's site on the World Wide Web portion of the Internet that Gold Smith Works hosts under this Agreement.
       
       
    4. "End User" means any Person who accesses or uses the Customer Web site via the Internet.
       
       
    5. "Gold Smith Works Technology" means Gold Smith Works 's proprietary technology, including, without limitation, Gold Smith Works services, software tools, hardware designs, algorithms, software (in source code and object code forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, know-how, trade secrets and any related intellectual property rights throughout the world (whether owned by Gold Smith Works or licensed to Gold Smith Works from a third party), and also including any derivatives, improvements, enhancements, updates, modifications or extensions of Gold Smith Works Technology conceived, reduced to practice or developed during the term of this Agreement by either party.
       
       
    6. "Person" means any individual, partnership, joint venture, corporation, limited liability company, trust, unincorporated association or organization, or government or any agency or political subdivision thereof.
       
       
    7. "Proprietary Information" means all technical, business and other information of a party (i) that is not generally known to the public, (ii) that derives value, economic or otherwise, from not being generally known to the public or to other Persons who can obtain value from its disclosure or use, and (iii) which information is subject to efforts that are reasonable under the circumstances to maintain the secrecy thereof.
       
       
    8. "Order" means the Order submitted by the Customer to Gold Smith Works for Services, whether such Order is submitted online through Gold Smith Works 's Web site or on a written Order form.
       
       
    9. "Terms of Service" means these Terms of Service, as the same may be modified, altered or amended from time to time by Gold Smith Works
       
       
    10. "Service" means either Hosting Service or Optional Service. "Hosting Service" means the Service provided by Gold Smith Works in response to an Order whereby Gold Smith Works provides the Customer with specified connectivity, storage space and bandwith for the hosting of a Customer Web site as more particularly described in the applicable Service Description. "Optional Service" means any additional Service (other than Hosting Service) Gold Smith Works may provide in response to an Order, as more particularly described in the applicable Service Description.
        
        
    11. "Service Description" means the applicable documents made available by Gold Smith Works to Customer to describe the applicable Services at the time the Order is accepted by Gold Smith Works
        
        
    12. "Term" means the duration of any Agreement between Gold Smith Works and Customer. With respect to Hosting Services, the "Initial Term" is the initial term specified in the Order and the Term continues beyond the Initial Term for any renewal period as specified in Section 3. . With respect to Optional Services, the "Term" begins when Gold Smith Works accepts the Order and ends on the first to occur of (i) Gold Smith Works 's completion of performance, or (ii) the earlier termination of the Order in any manner permitted by these Terms of Service.
        

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