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PCPort.com

Welcome to PCPort.com!  PCPort.com ("PCPort") is the leading comprehensive hosting solutions provider to middle market companies.  This Services Agreement ("Agreement") governs your purchase and use, in any manner, of all Web site hosting services as described in the Order Form (the “Services”), ordered by you and accepted by PCPort and describes the terms and conditions that apply to such purchase and use of the Services.  If you have registered for Co-Location Services, then the term “Services” also includes Co-Location Services so that this Agreement will govern your purchase and use of all Services, including Co-Location Services, and your purchase and use of the Co-Location Services shall also be governed by the terms and conditions set forth in Addendum A to this Agreement.  Addendum A is inapplicable if you did not register for Co-Location Services. 

You must register and accept the terms of this Agreement in order to use the Services.  BY CLICKING ON THE "I ACCEPT" BUTTON, AND REGISTERING FOR AND USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED HEREIN AS WELL AS ALL ACCEPTABLE USE POLICIES INCORPORATED BY REFERENCE.  PCPort reserves the right to change or modify any of the terms and conditions contained in this Agreement, the Addendum and any policy or guideline incorporated by reference at any time and from time to time in its sole discretion, and to determine whether and when any such changes apply to both existing or future customers.  Any changes or modification will be effective upon posting of the revisions on the PCPort Web site (the "Site").  PCPort will post a notice of such changes or modifications to this Agreement or the Addendum on the Site for thirty (30) days.  PCPort may post changes or modifications to referenced Acceptable Use Policies without notice to you.  Your continued use of Services following PCPort's posting of any changes or modifications will constitute your acceptance of such changes or modifications.  IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT (OR THE ADDENDUM IF THEY APPLY TO YOU), DO NOT CLICK THE "I ACCEPT" BUTTON. IF YOU DO NOT AGREE TO THE TERMS OF ANY MODIFICATION, DO NOT CONTINUE TO USE THE SERVICES AND IMMEDIATELY NOTIFY PCPort OF YOUR TERMINATION OF THIS AGREEMENT.  

1.             Term and Payment for Services 

1.1. Term.  This Agreement shall be for an "Initial Term" as chosen by you in the Order Form located on this Site at the time you register for the Services.  This Agreement will be automatically renewed (the "Renewal Term") at the end of the Initial Term for the same period as the Initial Term unless you provide PCPort with notice of termination thirty (30) days prior to the end of the Initial Term or the Renewal Term.  You must provide PCPort with your notice of termination by clicking on the "Cancel Service" button located on the Site or as otherwise provided by this Agreement.  Upon clicking on the "Cancel Service" button, you will be asked to provide PCPort with sufficient customer identification information so that PCPort may properly identify you and your account.  Any notice of termination will be effective following thirty (30) days after PCPort's receipt thereof. 

1.2. Termination Policy.  If you terminate your receipt of the Services prior to the end of the Initial Term or the Renewal Term, whichever is then applicable, (a) PCPort will not refund to you any fees paid in advance of such termination and (b) you shall be required to pay 100% of PCPort's standard monthly charge for each month remaining in the term, unless otherwise expressly provided in this Agreement.  Notwithstanding the foregoing, if you terminate your receipt of Shared Hosting Services prior to the end of the first thirty (30) days of the Initial Term, you are entitled to a refund of the fees you paid in advance for the monthly Services, not including any set-up fees.  Your termination request or notice must be submitted to PCPort in the manner described in Section 1.1.  PCPort may terminate this Agreement at any time and for any reason by providing to you written notice thirty (30) days prior to the date of termination.  If PCPort terminates this Agreement, PCPort will refund to you the pro‑rata portion of pre‑paid fees attributable to Services (excluding set-up fees) not yet rendered as of the termination date unless otherwise expressly provided in this Agreement. 

1.3  Default and Cure.  In the event that either party hereto defaults in the performance of any of its material duties or obligations under this Agreement, including failure to make any payments due under this Agreement, and such default is not cured within fifteen (15) days after written notice is given to the defaulting party specifying the default, then the party not in default, after given written notice thereof to the defaulting party, may terminate this Agreement.

1.4.  Charges.  You agree to pay for all charges attributable to your use of the Services at the then current PCPort prices, which shall be exclusive of any applicable taxes. You are responsible for the payment of all federal, state, and local sales, use, value added, excise, duty and any other taxes assessed with respect to the Services, other than taxes based on PCPort's net income. 

1.5.  Payment.  All charges for Services must be paid in advance according to the then current prices applicable to the Services.  Upon entering this Agreement, you must choose to pay either by direct charge to a credit or debit card, or receive an invoice and submit subsequent payment.  If you choose to pay by credit or debit card upon registering for the Services, you thereby authorize PCPort to charge your credit or debit card to pay for any charges that may apply to your account.  You agree that PCPort may accumulate any supplemental charges, incurred by you in your use of the Services ("Supplemental Charges") until such charges exceed $20 and then charge your account.  You must notify PCPort of any changes to your card account (including, without limitation, applicable account number or cancellation or expiration of the account), your billing address, or any information that may prohibit PCPort from charging your account.  If you choose to be invoiced upon registration for Services, PCPort will send an invoice to you for the Services applicable to the period for which you have registered for the Services.  PCPort may also send periodic invoices to you for any applicable Supplemental Charges associated with your use of the Services.  You agree to pay to PCPort the amount indicated in each invoice by the due date reflected on the invoice.  If you fail to pay any fees and taxes within ten (10) days from applicable due date for credit card or invoice payments, late charges of the lesser of one and one‑half per cent (1.5%) per month or the maximum allowable under applicable law shall also become payable by you to PCPort.  In addition, your failure to fully pay any fees and taxes within fifteen (15) days after the applicable due date will be deemed a material breach of this Agreement, justifying PCPort's suspension of its performance of the Services and/or termination of this Agreement. You are responsible for any fees associated with reinstatement of Services.  Any such suspension or termination would not relieve you from paying past due fees plus interest.  In the event of collection enforcement, you will be liable for any costs associated with such collection, including, without limitation, reasonable attorneys' fees, court costs and collection agency fees.

2.             Use of Services

2.1. Applicable Use Policy.  The PCPort Acceptable Use Policy (the "Usage Policy") govern the general policies and procedures for use of the Services.  The Usage Policy is posted on PCPort's Web site (or such other location as PCPort may specify) and may be updated from time‑to‑time.  YOU SHOULD CAREFULLY READ THE USAGE POLICY. BY USING THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF THE USAGE POLICY AND ANY MODIFICATIONS. PCPort RESERVES THE RIGHT TO TERMINATE YOUR ACCOUNT FOR ANY VIOLATION OF THE USAGE POLICY OR THIS AGREEMENT. 

2.2.  Material and Product Requirements.  Unless we have agreed otherwise in a separate agreement, you must ensure that all material and data placed on PCPort's equipment is in a condition that is "server‑ready," which is in a form requiring no additional manipulation by PCPort.  PCPort will make no effort to validate any of this information for content, correctness or usability. If your material is not "server-ready", PCPort has the option at any time to reject this material.  PCPort will notify you of its refusal of the material and afford you the opportunity to amend or modify the material to satisfy the needs and/or requirements of PCPort.  Use of the Services requires a certain level of knowledge in the use of Internet languages, protocols and software.  This level of knowledge varies depending on the anticipated use and desired content of your Web site.  You must have the necessary knowledge to create and maintain a Web site.  It is not PCPort's responsibility to provide this knowledge or customer support outside of the Services agreed to by you and PCPort. 

2.3. Bandwidth and Storage Usage.  You agree that use of the Services under this Agreement will not exceed the bandwidth and storage usage limits set out.  If you use any bandwidth or storage space in excess of the agreed upon number of megabytes per month, you agree to pay the associated additional charges.  This provision is not applicable to PCPort’s Co-Location Services.

3.             Enforcement  

3.1. Investigation of Violations.  PCPort may investigate any reported or suspected violation of this Agreement, its policies or any complaints and take any action that it deems appropriate and reasonable under the circumstance to protect its systems, facilities, customers and/or third parties.  PCPort will not access or review the contents of any e-mail or similar stored electronic communications except as required or permitted by applicable law or legal process.

3.2. Actions.  PCPort reserves the right and has absolute discretion to restrict or remove from its servers any content that violates this Agreement or related policies or guidelines, or is otherwise objectionable or potentially infringing on any third party's rights or potentially in violation of any laws.  If we become aware of any possible violation by you of this Agreement, any related policies or guidelines, third party rights or laws, PCPort may immediately take corrective action, including, but not limited to, (a) issuing warnings, (b) suspending or terminating the Service, (c) restricting or prohibiting any and all uses of content hosted on PCPort's systems, and/or (d) disabling or removing any hypertext links to third‑party Web sites, any of your content distributed or made available for distribution via the Services, or other content not supplied by PCPort which, in PCPort's sole discretion, may violate or infringe any law or third‑party rights or which otherwise exposes or potentially exposes PCPort to civil or criminal liability or public ridicule.  It is PCPort's policy to terminate repeat infringes.  PCPort’s right to take corrective action, however, does not obligate us to monitor or exert editorial control over the information made available for distribution via the Services.  If PCPort takes corrective action due to such possible violation, PCPort shall not be obligated to refund to you any fees paid in advance of such corrective action. 

3.3.  Disclosure Rights. To comply with applicable laws and lawful governmental requests, to protect PCPort's systems and customers, or to ensure the integrity and operation of PCPort's business and systems, PCPort may access and disclose any information it considers necessary or appropriate, including, without limitation, user profile information (i.e., name, e‑mail address, etc.), IP addressing and traffic information, usage history, and content residing on PCPort's servers and systems.  PCPort also reserves the right to report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties.

4.                 Intellectual Property Rights 

4.1.  Your License Grant to PCPort.  You hereby grant to PCPort a non-exclusive, worldwide, and royalty-free license for the Initial Term and any Renewal Term to use your content as necessary for the purposes of rendering and operating the Services to you under this Agreement.  You expressly (a) grant to PCPort a license to cache materials distributed or made available for distribution via the Services, including content supplied by third parties, and (b) agree that such caching is not an infringement of any of your intellectual property rights or any third party's intellectual property rights. 

4.2.  PCPort Materials and Intellectual Property.  All materials, including but not limited to any computer software (in object code and source code form), data or information developed or provided by PCPort or its suppliers or agents pursuant to this Agreement, and any know how, methodologies, equipment, or processes used by PCPort to provide the Services to you, including, without limitation, all copyrights, trademarks, patents, trade secrets and other proprietary rights are and will remain the sole and exclusive property of PCPort or its suppliers, including but not limited to any software programs, inventions, products and/or technology innovations and methodologies utilized, developed, or disclosed by PCPort during the term of this Agreement.  Unauthorized copying, reverse engineering, decompiling, and creating derivative works based on the any such software is expressly forbidden except as permitted in this Agreement.  You may be held legally responsible for violation of any patent rights, copyright or trade secret rights that is caused or encouraged by failure to abide by the terms of this Agreement. 

4.3.          Trademarks.  You hereby grant to PCPort a limited right to use your trademarks, if any, for the limited purpose of permitting PCPort to fulfill its duties under this Agreement.  This is not a trademark license and no other rights relating to the trademarks are granted by this Agreement.  Specifically, but without limitation, the rights granted by this Agreement do not include the right to sublicense use of your trademarks or to use your trademarks with any other products or services outside the scope of the Services provided under this Agreement.  The limited trademark use rights granted under this section terminate upon termination of this Agreement.

5.                Warranty; Warranty Disclaimer.

5.1.  Customer and/or Third Party Acts. PCPort is not responsible in any manner for any nonconforming Services to the extent caused by you or your customers.  In addition, PCPort is not responsible for loss or corruption of data in transmission, or for failure to send or receive data due to events beyond PCPort’s reasonable control. 

5.2.  No Express or Implied Warranty.  ALL SERVICES, SYSTEMS AND PRODUCTS PROVIDED BY PCPort UNDER THIS AGREEMENT ARE PROVIDED WITHOUT ANY EXPRESS OR IMPLIED WARRANTY IN FACT OR IN LAW, WHATSOEVER.  YOU ACKNOWLEDGE AND AGREE THAT PCPort EXERCISES NO CONTROL OVER, AND ACCEPTS NO RESPONSIBILITY FOR, THE CONTENT OF THE INFORMATION PASSING THROUGH PCPort'S COMPUTERS, NETWORK HUBS AND POINTS OF PRESENCE, OR THE INTERNET. PCPort DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.  ALL SERVICES PERFORMED UNDER THIS AGREEMENT ARE PERFORMED "AS IS" AND WITHOUT WARRANTY AGAINST FAILURE OF PERFORMANCE INCLUDING, WITHOUT LIMITATION, ANY FAILURE DUE TO COMPUTER HARDWARE OR COMMUNICATION SYSTEMS.  EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, PCPort DOES NOT MAKE AND HEREBY DISCLAIMS, AND YOU HEREBY WAIVE ALL RELIANCE ON, ANY REPRESENTATIONS OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING THE SERVICES, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR CONDITIONS OF QUALITY, AND ANY WARRANTIES WITH RESPECT TO PATENT, COPYRIGHT, TRADE SECRET OR TRADEMARK INFRINGEMENT. 

5.3  Your Warranties and Representations to PCPort.  You warrant, represent, and covenant to PCPort that (a) you are at least eighteen (18) years of age or are a duly organized and validly existing entity; (b) you possess the legal right and ability to enter into this Agreement; (c) you will use the Services only for lawful purposes and in accordance with this Agreement and all applicable policies and guidelines; (d) you will be financially responsible for the use of your account; (e) you have acquired or will acquire all authorization(s) necessary for hypertext links to third‑party Web sites or other content; (f) you have verified or will verify the accuracy of materials distributed or made available for distribution via the Services, including, without limitation, your content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted, and (g) your content does not and will not infringe or violate any right of any third party (including any intellectual property rights) or violate any applicable law, regulation or ordinance. 

6.                Limitation and Exclusion of Liability 

6.1.  Limitations.  IN NO EVENT SHALL PCPort HAVE ANY LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF INFORMATION DISTRIBUTED OR MADE AVAILABLE FOR DISTRIBUTION VIA THE SERVICES THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES.  PCPort SHALL HAVE NO LIABILITY UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF PCPort HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN ANY EVENT, THE LIABILITY OF PCPort TO YOU FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO PCPort BY YOU UNDER THIS AGREEMENT DURING THE THIRTY (30) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM ACCRUED.  THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. THE FEES FOR THE SERVICES SET BY PCPort UNDER THIS AGREEMENT HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK.  ACCORDINGLY, YOU HEREBY RELEASE PCPort FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIM IN EXCESS OF THE LIMITATION STATED IN THIS SECTION 6.1. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, OUR LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.

6.2.  Interruption of Service.  You hereby acknowledge and agree that PCPort will not be liable for any temporary delay, outages or interruptions of the Services.  Further, PCPort shall not be liable for any delay or failure to perform its obligations under this Agreement, where such delay or failure results from any act of God or other cause beyond its reasonable control (including, without limitation, any mechanical, electronic, communications or third‑party supplier failure). 

7.                Indemnification.  You will defend, indemnify and hold harmless PCPort and its officers, directors, shareholders, employees, consultants, agents, affiliates and suppliers (an “Indemnitee”) from any and all threatened or actual claims, demands, causes of action, suits, proceedings (formal or informal), losses, damages, fines, penalties, liabilities, costs and expenses of any nature, including attorneys' fees and court costs, sustained or incurred by or asserted against any Indemnitee by any person, firm, corporation, governmental authority, partnership or other entity by reason of or arising out of or relating to: (i) your violation or breach of any term, condition, representation or warranty of this  Agreement or any applicable policy or guideline; (ii) your conduct, including but not limited to your negligence, gross negligence, or willful misconduct; (iii) your improper or illegal use of the Services; (iv) any claim by a former employee of yours whose employment has been or may be terminated in connection with or as a result of the execution of this Agreement and performance of the Services by PCPort; or (iii) any claim relating to your services or products, including but not limited to advertising, product liability claims or infringement of any trademark, copyright, patent, trade secrets or non‑proprietary right of a third party (including, without limitation, defamation, libel, or violation of privacy or publicity). 

8.                Miscellaneous

8.1                  Confidentiality.  The parties each agree that all Confidential Information (as defined below) communicated to it by the other is done so in confidence and will be used only for the purposes of this Agreement and will not be used to compete with the other party or disclosed to any third party without the prior written consent of the other party except as permitted under this Agreement.  “Confidential Information” means all information in any form, including, without limitation, printed or verbal communications and information stored in printed, optical or electromagnetic format, which relates to the Services; or computer, data processing or electronic commerce programs and software; electronic data processing applications, routines, subroutines, techniques or systems; information which incorporates or is based upon proprietary information of either party; or information concerning business or financial affairs, product pricing, financial conditions or strategies, marketing, technical systems of either party; or any information concerning customers or vendors of either party; or any data exchange between a party and any customers or vendors.  Exceptions to Confidential Information include (1) information in the public domain;  (2) information developed independently by a party without reference to information disclosed under this Agreement; or (3) information received from a third party without restriction and/or breach of this or a similar Agreement.  It is not a violation of this provision to disclose Confidential Information in compliance with any legal, accounting or regulatory requirement beyond the control of either Party or, but in such case, prior to disclosure, the disclosing Party shall give written notice to the other Party to permit that Party an opportunity to challenge such disclosure.  If either Party is subpoenaed, such Party shall give written notice to the other Party to permit that Party an opportunity to challenge the disclosure of Confidential Information.  Upon the termination of this Agreement and upon written request of the disclosing Party, each Party shall promptly return all Confidential Information of the other Party.  This provision shall survive the termination of this Agreement for two (2) years.

8.2.  Notices.  All notices, reports, requests, or other communications given pursuant to this Agreement shall be made in writing, shall be delivered by hand delivery, overnight courier service, fax, or electronic mail, shall be deemed to have been duly given when delivered.

8.3. Choice of Law and Forum.  THIS AGREEMENT, WILL BE GOVERNED BY THE LAWS OF THE UNITED STATES AND THE STATE OF TEXAS, WITHOUT REFERENCE TO RULES GOVERNING CHOICE OF LAWS.  ANY ACTION RELATING TO THIS AGREEMENT MUST BE BROUGHT IN THE FEDERAL OR STATE COURTS LOCATED IN TEXAS, AND YOU IRREVOCABLY CONSENT TO THE JURISDICTION OF SUCH COURTS. 

8.4. Entire Agreement.  This Agreement and all policies and guidelines incorporated in this Agreement by reference constitutes the entire Agreement of the parties and may not be modified or altered orally but only by an agreement in writing signed by both parties. 

8.5. No Fiduciary Relationship; No Third‑Party Beneficiaries.  PCPort is not the agent, fiduciary, trustee or other representative of you.  Nothing expressed or mentioned in or implied from this Agreement is intended or shall be construed to give to any person other than the parties hereto any legal or equitable right, remedy or claim under or in respect to this Agreement.  This Agreement and all of the representations, warranties, covenants, conditions and provisions hereof are intended to be and are for the sole and exclusive benefit of the parties hereto. 

8.6.  Assignments.  You may not transfer or assign your rights, duties, or obligations under this Agreement without PCPort's prior written consent.  PCPort may assign its rights and obligations under this Agreement and may utilize affiliate and/or agents in performing its duties and exercising its rights under this Agreement, without your consent.  Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assignees. 

8.7.  No Waiver.  PCPort's failure to enforce the strict performance of any provision of this Agreement will not constitute a waiver of PCPort's right to subsequently enforce such provision or any other provisions under this Agreement.

8.8.  Severability.  If any provision of this Agreement is deemed illegal, invalid, void or otherwise unenforceable in whole or in part, that provision shall be severed or shall be enforced only to the extent legally permitted, and the remainder of the provision and the Agreement shall remain in full force and effect.  If any provision of this Agreement is deemed to be invalid, void or unenforceable only with respect to a particular application, such term or provision shall remain in full force and effect with respect to all other applications. 

8.9.  Survival.  All provisions of this Agreement relating to your warranties, intellectual property rights, limitation and exclusion of liability, your indemnification obligations and payment obligations shall survive the termination or expiration of this Agreement.

ADDENDUM A

ADDITIONAL TERMS APPLICABLE TO CO-LOCATION SERVICES

If you have registered for Co-Location Services, the term “Services,” as defined in the opening paragraph of the Agreement, shall include the Co-Location Services so that PCPort’s provision of all services is governed by both the terms and conditions set forth in the Agreement as well as the terms and conditions set forth in this Addendum A (the “Addendum A”).  To the extent there are any contradictions between the terms of the Agreement and the terms of this Addendum A with respect to your receipt of the Co-Location Services, then the terms of this Addendum A shall control. 

 A1.          Co-Location.

(a) PCPort will permit you to locate certain network and computer equipment and software (the “Co-Location Equipment”) in a designated area (the “Accessible Space”) within the commercial office building provided by PCPort (the “Facility”).  PCPort shall provide or cause to be provided certain services (“Co-Location Services”) as outlined in the applicable Order Form.  In connection with providing the Co-Location Services, PCPort shall also perform or provide, at no additional charge to you, the following services which support the overall operation of the Accessible Space:  environmental systems maintenance, power plant maintenance and janitorial services.  You will be responsible for any extraordinary maintenance, including, but not limited to, replacement of hardware or software that may be required for the operation of Co-Location Equipment. 

 (b)The Accessible Space is hereby accepted by you “as is.”  You may use the Accessible Space only for the purposes of installing, maintaining and operating hardware and software necessary to support local access communications facilities and/or links to PCPort or to other entities located outside of the Accessible Space. 

(c) You will provide, maintain, repair and/or replace the Co-Location Equipment, as needed, at your sole cost and expense.  You shall setup, install, configure and generally make ready the Co-Location Equipment necessary to provide Co-Location Services.  PCPort agrees that it shall cooperate fully with and assist you as reasonably requested thereby with the installation of your Equipment and the connection thereof to PCPort’s network. 

 (d) You shall be solely responsible for the handling, processing and filing any orders by customers generated by the Co-Location Equipment, if any, and for handling your customers’ inquiries and/or complaints arising therefrom. 

 (e) PCPort may, in its sole discretion, relocate the Co-Location Equipment and provide the Co-Location Services from a location other than the Facility.  In such event, PCPort shall notify you of the new facility within ten (10) days of relocating Co-Location Equipment. 

A2.          Term.  Any Co-Location Services provided hereunder shall be provided to you for the initial term set out in the applicable Order Form.  Your receipt of the Co-Location Services shall be automatically renewed under the Agreement and this Addendum A as provided in Section 1.1 of the Agreement, and may be terminated by you only as provided in Section 1.2. 

A3.          Fees and Payment.  Upon registration for Co-Location Services, you must choose to pay for the services either by credit card or upon your receipt of an invoice.  Your payment for all charges and fees are subject to the terms and conditions of the Agreement. 

A4.                Warranties and Limitation on Liability.  YOU ACKNOWLEDGE THAT YOUR RECEIPT OF THE CO-LOCATION SERVICES IS SUBJECT TO THE LIMITATIONS ON WARRANTIES AND PCPort’S AND ITS SUPPLIERS LIMITATIONS ON LIABILITY AS PROVIDED IN THE AGREEMENT.  YOU FURTHER ACKNOWLEDGE THAT THE INTERNET IS NEITHER OWNED NOR CONTROLLED BY ANY ONE ENTITY; AS A RESULT, PCPort AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES OR GUARANTEES THAT THE CO-LOCATION EQUIPMENT SHALL BE ABLE TO ACCESS THE INTERNET AT ANY GIVEN TIME.  PCPort REPRESENTS THAT IT SHALL MAKE EVERY GOOD FAITH EFFORT THAT THE CO-LOCATION EQUIPMENT HAS INTERNET AVAILABILITY TO AS MANY USERS WITH AS MINIMAL INTERRUPTIONS OF CO-LOCATION SERVICE AS POSSIBLE.  NEVERTHELESS, PCPort AND ITS SUPPLIERS CANNOT AND DO NOT WARRANT THAT THERE WILL BE SATISFACTORY AND/OR UNINTERRUPTED CONNECTIONS TO THE INTERNET. 

 A5.          Risk of Loss.  You acknowledge that you are accepting PCPort’s Co-Location Services at your own risk.  Neither PCPort nor its suppliers shall bear any risk of loss or damage of the Co-Location Equipment, which shall be borne exclusively by you.  PCPort shall bear the risk of loss or damage only of equipment that PCPort provides for the Co-Location Services.  Neither you nor PCPort shall bear the risk of loss or damage of third party equipment used in providing the Co-Location Services. 

 A6.          Rights. 

 (a)During the term of the Agreement and this Addendum A, and provided you are not then in default of any of the material terms of the Agreement or this Addendum A, including without limitation, any payment terms:

i. You will be allowed root access to the Co-Location Equipment.  You shall have sole access to the Co-Location Equipment for programming purposes.  You agree not to attempt or allow any of its users to attempt access to other Web servers, computers, routers, hubs or any other devices connected to any of PCPort’s networks to which you do not have an account.  Further, you agree not to interconnect the Co-Location Equipment with equipment or services of any entity without the prior written consent of PCPort.  If any of the foregoing provisions are breached, in addition to any other remedies PCPort may have available at law, in equity or under the Agreement or this Addendum A, PCPort will immediately deny root access to you without penalty to PCPort.  

ii. You are entitled to physical access of the Co-Location Equipment during normal business hours of the Facility or other facility where your Equipment is located.  Each such visit shall be subject to PCPort’s rules and regulations then in effect concerning access to the Facility or such other facility.  In addition, you must maintain, at your expense, during the entire time this Agreement is in effect (1) Comprehensive General Liability Insurance with contractual coverage in an amount not less than One Million U.S. Dollars ($1,000,000) per occurrence for bodily injury and property damage, (2) Employer’s Liability Insurance in an amount not less than Five Hundred Thousand U.S. Dollars ($500,000) per occurrence, and (3) Worker’s Compensation in an amount not less than that prescribed by statutory limits.  Within ten (10) days of the date hereof, you shall furnish PCPort with certificates of insurance which evidence the minimum levels of insurance set forth herein and which name PCPort as additional insured. 

 (b)The Co-Location Equipment, including all software not belonging to PCPort that constitutes a part thereof, is and shall remain proprietary to you.  Title and all ownership and property rights in and to the Co-Location Equipment and all copyrights, trademarks, trade names, service marks and all other intellectual property rights of you and/or its suppliers are and shall remain the sole and exclusive property of you and/or your suppliers. 

 (c)PCPort agrees that we will not (i) modify the Co-Location Equipment, including any software, in any way, (ii) copy, except for backup or archival purposes, any software belonging to you including in the Co-Location Equipment, (iii) sell, lend, rent, lease or otherwise transfer or dispose of the Co-Location Equipment or any portion, component or copy thereof, (iv) use the Co-Location Equipment or any portion, component or copy thereof for any purpose other than providing Co-Location Services to you as contemplated in this Addendum A. 

A7.          Content.  PCPort will exercise no control whatsoever over, nor have any responsibility or liability whatsoever for, the content of the information passing through the Co-Location Equipment, which shall be your sole responsibility.  PCPort will have no responsibility to validate any information passing through the Co-Location Equipment for content, correctness, usability or for any other reason. 

A8.                Prohibited Uses.  In addition to the terms and conditions set forth in the Agreement relating to your use of the Services, you acknowledge and agree not to use, nor permit the use of or by any person, of Co-Location Equipment or any part thereof, including any links to other Web space, (i) to transmit any obscene communications with intent to annoy another person or persons or to any person under 18 years of age, (ii) in violation of any patent, trademark, service mark, or copyright law, or (iii) to transmit unsolicited advertisements of services or products, a practice also known as “spamming” or relay “spamming.”