Service Agreement for Data Storage and Transfer and related Services
WHEREAS, PCW is a website development and information provider connected to the Internet. PCW offers storage and transfer services over the Internet through access to its Web Servers and offers other related services;
WHEREAS, Client seeks to utilize PCW's server(s) and services for its own purposes;
WHEREAS, the parties acknowledge that the Internet is neither owned nor controlled by any one entity; therefore, PCW can make no guarantee that any given reader shall be able to access PCW's server(s) and services at any given time. PCW represents that it shall make every good faith effort to ensure that its server(s) and services are available as widely as possible and with as little service interruption as possible;
NOW THEREFORE, in consideration of the mutual promises contained herein, the parties agree as follows;
I. Financial Arrangements:
1. Client agrees to a minimum one (1) month contract, beginning upon PCW's receipt of payment for the first (1) month of service for monthly hosting plans. If Client elects to an annual hosting plan, then the term will be 12 months.2. First (1) months payment plus setup charges, if any, shall be due in advance of service for monthly hosting plans. If Client elects to an annual hosting plan, then the term will be 12 months, and the payment will be for the 12 month term plus setup charges, if any, will be due in advance of service for the hosting plan.
3. This agreement will automatically renew for successive periods consistent with the last invoiced period unless canceled in writing 10 days prior to the renewal date. Written notice may be by postal, the PCW website form, email or fax transmission. Confirmation that your request to cancel has been received by PCW will be sent to client. If client does not receive confirmation from PCW, then PCW has not received client's request for cancellation. Renewal prices are subject to change. Renewal of services by Client indicates agreement to any Contract revisions.
4. Renewal fees for the following term will be automatically charged to the credit card on file for your account unless other arrangements have been made. Payments may also be made by check. Returned checks are subject to a $50.00 returned check fee.
5. Accounts that have unpaid invoices more than 7 days past the renewal date will be suspended without notice until the account is brought current. PCW reserves the right to terminate the account and delete the files. PCW reserves the right to apply a $50.00 reconnection fee to all suspended accounts. Suspension does NOT release client of the responsibility for payment of the account and monies due.
6. Cancelled accounts (wether by PCW or client) will not be refunded a full credit or pro-rated credit for any unused portion of hosting or other services that have been paid for, unless the cancellation occurred due to poor performance on the part of PCW and within the first 30 days of the account being established. Poor performance is considered uptime of less than 90% and must be documented by client. Client must notify PCW within 12 hours of any possible performance issues so that PCW can determine wether or not the performance issue is with PCW or the client. Client acknowledges that PCW will make the final determination as to wether the performance issue is the responsibility of PCW or the client.
7. Overage fees for disk storage that is in excess of client's hosting plan will be asses on the next invoice at a rate of $5 per every 100 Megs of disk space that is exceeded. Customers may avoid this fee by not exceeding their hosting plan maximum disk space, or by contacting PCW to change their hosting plan to an appropriate level. Accounts will be audited at random each month to ensure compliance and to asses fees.
8. Overage fees for SQL Server space that is in excess of client's hosting plan will be asses on the next invoice at a rate of $5 per every 100 Megs of disk space that is exceeded. Customers may avoid this fee by not exceeding their hosting plan's maximum SQL Server storage space, or by contacting PCW to change their hosting plan to an appropriate level. Accounts will be audited at random each month to ensure compliance and to asses fees.
II. Taxes:
PCW shall not be liable for any taxes or other fees to be paid in accordance with or related to purchases made from Client or PCW's server. Client agrees to take full responsibility for all taxes and fees of any nature associated with such products sold.III. Material and Products:
PCW will exercise no control whatsoever over the content of the information passing through the network except for what is noted in section X of this agreement. PCW will not host any material that is judged as pornographic in content. Please contact PCW if uncertain of the nature of your content. PCW makes no warranties or representations of any kind, whether expressed or implied for the service it is providing. PCW also disclaims any warranty of merchantability or fitness for particular purpose and will not be responsible for any damages that may be suffered by the Client, including loss of data resulting from delays, non-deliveries or service interruptions by any cause or errors or omissions of the Client. Use of any information obtained by way of PCW is at the Client's own risk, and PCW specifically denies any responsibility for the accuracy or quality of information obtained through its services. Connection speed represents the speed of a connection to and does not represent guarantees of available end to end bandwidth. PCW expressly limits its damages to the Client for any non-accessibility time or other down time to the pro-rata monthly charge during the system unavailability. PCW specifically denies any responsibilities for any damages arising as a consequence of such unavailability.IV. Trademarks & Copyrights:
Client warrants that it has the right to use any applicable trademarks or copyrighted material used in connection with this service.V. Age:
The Client certifies that he or she is at least 18 years of age.VI. Internet Etiquette:
Electronic forums such as mail distribution lists and Use Net news groups all have expectations regarding subject area and appropriate etiquette for posting. Users of these forums should be considerate of the expectations and sensitivities of others on the network when posting material for electronic distribution. The network resources of PCW may not be used to impersonate another person or misrepresent authorization to act on behalf of others or PCW. All messages transmitted via PCW should correctly identify the sender; users may not alter the attribution of origin in electronic mail messages or posting. Users must not attempt to undermine the security or integrity of computing systems or networks and must not attempt to gain unauthorized access.PCW does not permit :
1)The transmission of unsolicited bulk e-mail ("UBE") or unsolicited commercial e-mail ("UCE") (collectively known as spam) nor do we permit the use, sale, or development of software that intentionally hides or alters the origin of the sender.
2) The transmission of unsolicited bulk email thru a 3rd party where a website hosted on PCW servers is referenced.
3) Maintaining an open SMTP Relay
4) Advertising, transmitting, or otherwise making available any software, program, product, or service that is designed primarily to assist or facilitate in the transmission of UBE/UCE including:
- the facilitation of the sending of spam
- the sale, offer to sell, advertisement or distribution of spamware and
- the initiation of pinging, flooding, mailbombing, denial of service attacks, and piracy of software
5) the sale of bulk e-mailing lists containing unauthorized and/or unconfirmed e-mail addresses and
6) the sale of other spam-friendly material
For purposes of this agreement, "spamware" means and includeds software, hardware, databses, lists, or services primarily designed or marketed to facilitate the sending of spam. Spamware may attempt to hide the sender, falsify e-mail header (origin) information, or disguise URL's to obstruct identification of web sites advertised by spam. Spamware may also include technology or other services designed to circumvent spam filters.
Complaints or allegations regarding any abuse of e-mail and/or the distribution of such software will be investigated. If it is found that the client has engaged in actions prohibited above, a warning to cease and desist will be issued. Subsequent violations will result in suspension and/or termination of the account without refund of service fees.
ALL software and files uploaded must follow the standard Internet guidelines for fitness of use. Such software items that result in denial of service are not fit for use. An example of a denial of service software would be eggdrop and is not acceptable. PCW reserves the right to delete those files.
VII. Privacy:
PCW will make every effort to protect the privacy of PCW's clients. PCW will not reveal personal information regarding its clients. PCW cannot however protect privacy through the Internic registration database as this information is open to the public.VIII. Termination:
This Agreement may be terminated by either party, without cause, by giving the other party 30 days written notice. Written notice may be by postal, PCW form or fax transmission. PCW reserves the right to verify all cancellations before terminating service. Notwithstanding the above, PCW may terminate service under this Agreement at any time, without penalty, if the Client fails to comply with the terms of this Agreement.IX. Limited Liability:
1. Client expressly agrees that use of PCW's Server is at Client's sole risk. Neither PCW, its employees, affiliates, agents, third party information providers, merchants licensers or the like, warrant that PCW's Server service will not be interrupted or error free; nor do they make any warranty as to the results that may be obtained from the use of the Server service or as to the accuracy, reliability or content of any information service or merchandise contained in or provided through the PCW Server service, unless otherwise expressly stated in this Agreement.2. Under no circumstances, including negligence, shall PCW, its offices, agents or any one else involved in creating, producing or distributing PCW's Server service be liable for any direct, indirect, incidental, special or consequential damages that result from the use of or inability to use the PCW Server service; or that results from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation, or transmission or any failure of performance,whether or not limited to acts of God, communication failure, theft,destruction or unauthorized access to PCW's records, programs or services. Client hereby acknowledges that this paragraph shall apply to all content on PCW's Server service.
3. Notwithstanding the above, Client's exclusive remedies for all damages, losses and causes of actions whether in contract, tort including negligence or otherwise, shall not exceed the aggregate dollar amount which Client paid during the term of this Agreement and any reasonable attorney's fee and court costs.
X. Lawful Purpose:
Client may only use PCW's Server for lawful purpose. Transmission of any material in violation of any Federal, State or Local regulation is prohibited. This includes, but is not limited to copyrighted material, material legally judged or judged in our reasonable opinion to be threatening or obscene, pornographic, profane, or material protected by trade secrets.XI. Indemnification:
Client agrees that it shall defend, indemnify, save and hold PCW harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorneys' fees, ("Liabilities") asserted against PCW, its agents, its customers, servants, officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by Client, its agents, employees or assigns. Client agrees to defend, indemnify and hold harmless PCW against Liabilities arising out of (i) any injury to person or property caused by any products sold or otherwise distributed in connection with PCW's Server; (ii) any material supplied by Client infringing or allegedly infringing on the proprietary rights of a third party; (iii) copyright infringement and (iv) any defective product which Client sold on PCW Server.XII. Contract Revisions:
Revisions to this Contract will be applicable to previous Contracts. Revisions will be considered agreed to by the Client on renewal of Port City Web, LLC services as specified in Section I. Financial Arrangements.XIII. Value Added Reselling:
Clients approved and authorized as PCW resellers are allowed to resell the storage and transfer services provided by PCW as provided for in its standard product offering. Client agrees to handle and is responsible for all third-party client's content, support, set-up, maintenance and billing. Client agrees to having the necessary additional knowledge and skill level required. Client also agrees that they are responsible for all payments for accounts brought on by client under the reseller program.XIV. Email accounts and log files:
Disk usage for email accounts does not count toward the total web hosting disk usage. Client is only allowed the number of email accounts that are specified in their hosting plan. PCW reserves the right to take actions to reduce the size of email accounts that include, but are not limited to, the deletion of emails over 15 days old. It is the responsibility of client to download email and save it locally. If client requests that email be restored from backup, PCW will charge customer a minimum fee of $100.PCW will, at its own discretion, archive and/or delete log files that are more than 15 days old. It is the responsibility of the client to download and archive client log files. If a client requests that log files be restored from backup, PCW will charge a customer a minimum fee of $100.
XV. Backups:
PCW regularly performs industry standard backups of data on it's servers. This data is intended to be used to restore files in the case of a server crashing. PCW makes no guarantee as to the integrity of the backup and the data within the backup. Clients who request that data be recovered from a backup file will be charged a minimum fee of $100 to extract the data from the backup files.REV 1.2.8.PCW 3/15/2008This Agreement constitutes the entire understanding of the parties. Any changes or modifications to this Contract thereto are agreed to by the both parties upon renewal of services.
This Agreement shall be governed and construed in accordance with the laws of the United States of America and the State of New Hampshire.
