PCG Hosting Sales
This Agreement ("Agreement") is between PCG Hosting, a Colorado company with an office at 12091 Dahlia Drive, Denver, CO 80241 and the party specified in the order form annexed hereto and incorporated herein by reference ("Order"). Such party shall be referred to herein as the "Customer" and shall enter into this Agreement by signing below.
For good and valuable consideration, the parties agree as follows:
Subject to the terms and conditions of this Agreement, PCG Hosting will provide to Customer the Web hosting and/or related services described in the plan selected by Customer from PCG Hosting' then published list of services offered from time to time ("Services"). The specific plan of Services to be provided initially to Customer shall be as selected in the Order and thereafter as established through correspondence between Customer and PCG Hosting.
The initial term of this Agreement shall be as stated in the Order ("Initial Term"). The Initial Term shall begin upon commencement of Service to Customer, provided, however, no Service shall commence unless and until PCG Hosting receives and accepts a completed Order from Customer, plus payment in full for Services to be rendered during the Initial Term and any setup charges. PCG Hosting reserves the right to reject any submitted Order for any or no reason prior to written acceptance thereof by PCG Hosting. After the Initial Term, unless otherwise agreed to by the parties, this Agreement shall automatically renew for successive terms of equal length as the Initial Term unless terminated or canceled by either party only as provided in Paragraph 9 below. The Initial Term plus all successive renewal periods during which Service is provided shall be collectively referred to as the "Term."
3. FEES AND PAYMENT
All fees for Services rendered or provided to Customer shall be in accordance with PCG Hosting's fee schedule then in effect, the terms of which are incorporated herein by reference. A fee schedule setting forth PCG Hosting' current rates for Services is annexed to the Order. PCG Hosting may, with 30 days notice to Customer, amend the Services and/or the rates and fees it charges for the Services. Fees for renewal periods after the Initial Term shall be due and owing immediately upon the first day of such renewal period. Customer will receive an invoice for the charges for the basic Services rendered or provided by PCG Hosting for such renewal period, plus any additional Services rendered or provided by PCG Hosting to Customer for the preceding month of the Term, and any other charges or fees then due hereunder. Payment in full of such invoiced amount is due upon receipt of the invoice. Should payment in full of any invoice not be received by PCG Host within thirty (30) days after date of invoice, PCG Hosting may impose a debt service charge equal to one and one-half percent (1.5%) of the overdue balance (or such lesser amount as may be required by law) for each month or fraction thereof the overdue amount remains unpaid. In addition, in the event that any amount due PCG Hosting remains unpaid thirty (30) days after presentation of an invoice to Customer, PCG Hosting, in its sole discretion, may immediately terminate this Agreement, and/or withhold or suspend Services. All taxes, fees and governmental charges relating to the Services provided hereunder (other than income taxes of PCG Hosting) shall be paid by Customer.
4. CONTENT AND CUSTOMER'S RESPONSIBILITY
PCG Hosting will exercise no control whatsoever over, nor have any responsibility or liability whatsoever for, the content of the information passing through its network. PCG Hosting shall make no effort to validate any information passing through its network for content, correctness, usability or for any other reason.
5. NO WARRANTY
Customer agrees to use all PCG Hosting' Services and facilities, and any information obtained through or from PCG Hosting, at Customer's own risk. Customer acknowledges and understands that neither PCG Hosting, nor any of its employees, representatives, agents or the like, warrant that the Services offered or provided hereunder will not be interrupted or be error free, nor do they make any warranty or representation as to the results that may be obtained from the use of the Service or as to the accuracy, reliability or content of any information service or merchandise contained in or provided through the Service, unless otherwise expressly stated in this Agreement. PCG Hosting specifically disclaims all warranties of any kind, including, without limitation, the warranty of merchantability and fitness for a particular purpose, whether expressed or implied, for the Service it is offering or providing hereunder. The only exception to this warranty will be PCG Hosting's 99% uptime guarantee as stated on PCG Hosting's Web site.
6. PROHIBITED USES
Customer shall not use, nor permit the use by any person of, Customer's Web space or any part thereof, including any links to other Web space, in violation of PCG Hosting' "Usage Policy" provided herewith.
7. LIMITED LIABILITY
Under no circumstances, including negligence, shall PCG Hosting, its officers, agents or anyone else involved in creating, producing or distributing the Service hereunder be liable to Customer or any third party, for any claims, causes of action or direct, indirect, incidental, special, or consequential, trebled, or punitive damages, that result or have alleged to have resulted from the use of or inability to use the Service; or that results from mistakes, omissions, interruptions, deletion of files, loss of data, errors, defects, delays in operations, or transmission or any failure of performance, whether or not limited to acts of God, communications failure, theft, destruction or unauthorized access to PCG Hosting' records, programs or services. PCG Hosting further shall have no responsibility whatsoever to Customer or any third party for the accuracy or quality of information obtained through or in connection with its Services provided hereunder. Notwithstanding the above, Customer's exclusive remedies for all damages, losses, costs or causes of actions from any and all claims, whether in contract, quasi-contract, statutory, tort including negligence, or otherwise, shall not exceed the aggregate dollar amount which Customer paid during the twelve (12) months immediately preceding the claim or the term of this Agreement, whichever is less.
Customer shall defend, indemnify, save and hold PCG Hosting harmless from any and all damages, demands, liabilities, losses, costs and claims, including, without limitation, reasonable attorneys' fees, compensatory damages, punitive damages, trebled damages, and statutory damages (hereinafter "Liabilities") asserted against PCG Hosting, its agents, its customers, servants, officers and employees, that may arise or result from any service provided or performed or agreed to be performed by Customer, its agents, employees or assigns or any product distributed, offered or sold by Customer, its agents, employees or assigns.
This Agreement may be terminated: (i) by PCG Hosting, without cause, by giving the customer 30 days prior written notice; (ii) by PCG Hosting, at any time, upon 20 days' prior notice if in the sole judgment of PCG Hosting, Customer breaches any material provision of this Agreement and has not cured same by the end of the 20 days; (iii) by PCG Hosting in the event of nonpayment by Customer as provided in Paragraph 3 above; and (iv) by PCG Hosting, at any time, without notice, if, in PCG Hosting' sole judgment, Customer is in violation of any terms or conditions of PCG Host's Usage Policy; (v) by customer, without cause, by providing PCG Hosting with 30 days prior written notice, and understanding that customer will relinquish all fees paid to PCG Hosting.
10. ADDITIONAL TERMS AND CONDITIONS
Customer hereby acknowledges that it has received and reviewed a copy of PCG Hosting' "Usage Policy" provided herewith and that the terms of the Usage Policy are incorporated herein by reference. PCG Hosting reserves the right to amend the Usage Policy from time to time and Customer shall be bound by any such amendments. Customer shall have the obligation to periodically visit PCG Hosting' Web site to review its Usage Policy and to make certain Customer is in full compliance therewith. In the event of any inconsistencies between this Agreement and the Usage Policy, the terms of the Usage Policy shall govern.
Each of PCG Hosting' hosting plans carries a 30 day unconditional money back guarantee. If Customer is not completely satisfied with PCG Hosting' services provided hereunder within the first 30 days of the Initial Term, Customer will be given a full refund of any amounts paid to PCG Hosting hereunder excluding setup fees (unless canceled prior to activation), domain registration fees and overages. No refund is available after the 30th day of the Initial Term.
All notices must be sent either in writing or by email, except as otherwise expressly provided herein that a notice must be in writing. All notices to PCG Hosting shall be delivered to its address stated above or its email address as provided. All notices to the Customer shall be delivered to its mailing address or its email address as provided on the Order. The parties may change their respective address by notice delivered to the other party. All notices delivered in writing must be sent either by overnight courier or certified mail, return receipt requested. Evidence of successful transmission of all notices delivered by email must be retained by the delivering party.
This Agreement sets forth the entire agreement between PCG Hosting and Customer with respect to the subject matter hereof and supersedes all previous representations, understandings or agreements and shall prevail notwithstanding any variance with terms and conditions of any other prior writing between the parties. If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions shall nevertheless continue in full force and effect. Customer may not transfer or assign this Agreement without PCG Hosting's prior written consent. This Agreement shall be governed by the laws of the State of Colorado and all claims concerning this Agreement shall be brought exclusively in the state or federal courts located in the County of Adams and State of Colorado. The parties hereby consent to submit to the jurisdiction of such courts and waive any personal jurisdiction or venue defenses concerning said forum.