GOVERNING PROVISIONS.
A. These General PogoZone Terms and Conditions govern Customer's access to and use of any service ("Service") provided to it by PogoZone.
B. The PogoZone Service Terms and Conditions for each specific Service Customer obtains from PogoZone govern Customer's access to and use of the specific Service(s) provided to Customer by PogoZone.
PAYMENT FOR SERVICES.
A. INITIAL PAYMENT. Charges for a Service shall commence to accrue on the Service Commencement Date for the Service and shall be prorated in the event the first month of service is not a full calendar month. Payment of all non-recurring charges indicated in the Contract for Service, including but not limited to installation costs and the monthly recurring charges for the first full calendar month of the Initial Term and any prorated partial month, shall be made in full on or before the Service Commencement Date.
B. RECURRING CHARGES. Monthly recurring charges incurred after the first full calendar month of the Initial Term will be invoiced to Customer in advance at the beginning of the month for which the charges accrue. Additional charges, including usage-based charges, late fees, accrued interest, and early termination fees, shall be invoiced in arrears. Payment of all invoiced amounts is due on the twenty-fifth (25) day after the date of the invoice. PogoZone's failure to receive payment within thirty (30) days of the date of an invoice shall constitute a material breach by Customer of the Contract for Service.
C. TAXES. Customer shall be liable for and shall pay all local, state, federal and non-United States sales taxes and other taxes and charges arising from PogoZone's provision of Services. Customer shall pay and be solely responsible for all taxes, fees and charges levied directly upon it.
D. BILLING DISPUTES. If Customer believes a PogoZone bill contains an error, Customer shall pay timely the undisputed portion of the bill and notify PogoZone of the suspected error within fifteen (15) days of the date of the disputed bill. PogoZone shall have no obligation to make any billing adjustment or refund for any errors for which Customer has not provided PogoZone timely notice. Disputed charges shall not accrue a service charge pending resolution of PogoZone of the dispute.
E. LATE CHARGES AND COLLECTION COSTS. Charges not in dispute which are not paid by Customer within thirty (30) days of PogoZone's invoice for a Service shall accrue a late fee which shall accrue daily at the rate of one and one-half percent (1 1/2%) per month until paid. Customer shall pay PogoZone's reasonable costs of collection, including reasonable attorneys' fees, incurred by PogoZone in collecting any charges payable to it by Customer.
TERM AND TERMINATION OF A CONTRACT FOR SERVICE.
A. TERM. The initial term of the Contract for Service shall be for the period specified in the Contract for Service and shall commence on the Service Commencement Date. If the Contract for Service is amended to upgrade a Service, the term of the amended agreement for the upgraded Service shall be for one year commencing on the effective date of the amendment. Upon termination of its term, the Contract for Service shall automatically renew for additional one-year terms unless written notice is provided by either party 30 days prior to the completion of a pending term.
B. TERMINATION. Either Customer or PogoZone may terminate a Contract For Service for cause if: (1) the other party breaches a material term or condition of the Contract for Service and fails to cure the breach within thirty (30) days after receipt of written notice of the breach, except in the case of a default by Customer in payment for a Service, which must be cured within five (5) days after written notice by PogoZone of the default; (2) the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (3) the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors if such petition or proceeding is not dismissed within sixty (60) days of filing. Customer also may terminate the Contract for Service in accordance with the terms set forth in a Service Level Agreement set forth in a Service Terms and Conditions.
C. EARLY TERMINATION FEE. If Customer terminates a Contract for Service prior to the completion of the Initial Term or any subsequent renewal term, Customer shall pay PogoZone an early termination fee equal to fifty percent (50%) of the monthly service fee for the remaining portion of the Initial Term or renewal term.
D. EFFECT OF TERMINATION. Upon termination of a Contract for Service by either party for any reason, PogoZone shall cease providing the Service affected by the termination.
E. RESUMPTION OF SERVICE AFTER TERMINATION. PogoZone will promptly notify Customer of PogoZone's termination of a Service due to Customer's breach of a Contract for Service and the reason the Service was terminated. If Customer requests PogoZone to resume providing the Service, PogoZone may, in its sole discretion and on such terms as PogoZone may specify, agree to resume providing the Service. If PogoZone agrees to resume providing the Service, Customer shall pay in advance a non-refundable fee in the amount if Fifty and 00/100 Dollars ($50.00) or Fifty Percent (50%) of the Customer's monthly recurring charge for the affected Service, whichever is greater.
CONTRACT PRICE ADJUSTMENT UPON RENEWAL.
PogoZone may at any time after the initial term, increase or decrease any or all fees payable under this agreement, for each renewal term.
PROHIBITED USE OF SERVICES.
A. Customer shall not use any Service in a manner which PogoZone reasonably determines may adversely affect PogoZone's systems, other PogoZone customers, the integrity and operation of PogoZone's business, or PogoZone's ability to provide Services to other PogoZone customers.
B. PogoZone has the right, but not the obligation, to monitor any activity and content associated with the use of the Services. PogoZone may cooperate with law enforcement agencies in any investigation related to the use of a PogoZone Service and investigate any complaint or reported violation of law or PogoZone's policies and take any action it deems appropriate. Such action may include, but is not limited to, issuing warnings, suspension or termination of a Service, removal of materials on a PogoZone-hosted web site, and disclosure of information to law enforcement agencies, including but not limited to user contact details, IP addressing and traffic information, usage history and posted content, in response to requests PogoZone reasonably deems to be legally enforceable.
C. PogoZone has the right to terminate any Service without notification if PogoZone determines to its reasonable satisfaction that Customer has used the Service to engage in an activity prohibited by PogoZone.
EMERGENCY AND SCHEDULED MAINTENANCE.
PogoZone will provide reasonable notice by email to Customer of scheduled maintenance affecting the Services and will use reasonable efforts to notify Customer of emergency maintenance affecting the Services, provided that PogoZone may, if reasonably necessary, perform emergency maintenance at any time, without advance notice to Customer. During scheduled and emergency maintenance periods, PogoZone's Services may be unavailable to Customer.
LIMITATIONS ON PogoZone'S LIABILITY TO CUSTOMER.
A. PogoZone PROVIDES THE SERVICES "AS IS" AND WITHOUT ANY WARRANTY, EXPRESS, IMPLIED, EXCEPT AS EXPRESSLY SET FORTH IN WRITING IN THIS SERVICE AGREEMENT. PogoZone SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, INCLUDING ANY WARRANTIES THAT THE SERVICES WILL MEET CUSTOMER'S REQUIREMENTS OR EXPECTATIONS.
B. IN NO EVENT SHALL PogoZone BE LIABLE OR RESPONSIBLE TO CUSTOMER FOR ANY TYPE OF INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF DATA, OR INTERRUPTION OR LOSS OF USE OF SERVICE OR EQUIPMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
C. IN NO EVENT SHALL PogoZone'S LIABILITY TO ANY CUSTOMER OR ANY THIRD PARTY IN ANY CIRCUMSTANCE EXCEED THE AMOUNT OF FEES CUSTOMER ACTUALLY PAID TO PogoZone FOR SERVICES IN THE ONE MONTH PERIOD DIRECTLY PRIOR TO THE ACTION GIVING RISE TO ALLEGED LIABILITY.
D. PogoZone does not and cannot control the transmission of data outside of PogoZone's colocation networks. Accordingly, PogoZone disclaims any and all liability resulting from or related to any disruption of any Service or the inability of Customer to utilize any Service except as may be expressly provided in a PogoZone Service Level Agreement applicable to a specific Service.
E. PogoZone makes no warranty and disclaims any and all liability with respect to: (i) software used by PogoZone to provide the Services; (ii) the accuracy, completeness, currency, error-free nature, or fitness for any particular purpose of any data or services accessed by Customer through the Services; and (iii) damages or inconvenience which may be caused by necessary or scheduled maintenance to PogoZone's systems.
F. Any equipment which is accessible through the Internet is vulnerable to damage caused by malicious users of the Internet, malfunctions of the Internet, or otherwise. PogoZone shall have no liability for any damage to or loss of Customer equipment resulting from any cause other than the negligence or willful misconduct of PogoZone or its authorized agents. To the extent PogoZone is liable for any damage to or loss of Customer equipment caused by the gross negligence or willful misconduct of PogoZone or its authorized agent, such liability shall be limited solely to the then-current replacement value of the equipment, excluding the value of any lost data, software or firmware.
G. PogoZone shall not be in default under any provision of the Contract for Service or be liable for any delay, failure of performance or interruption of any Service resulting, directly or indirectly, from causes beyond PogoZone's reasonable control, including but not limited to any of the following: acts of God; fire or explosion; vandalism; cable cut; weather conditions; action of any governmental or military authority; national emergency; insurrection; riot; war; acts of terrorism; strikes; lockouts; work stoppages or other labor difficulties; supplier failure; shortage; or telecommunication or other Internet provider failure.
H. PogoZone's websites may contain links to external websites not under PogoZone's control that may be useful to you. PogoZone is not responsible for the privacy practices or the content of these external websites. I. Every person granted access to the Facilities by or on behalf of Customer does so at his or her own risk. PogoZone assumes no liability whatsoever for any harm to such persons resulting from any cause other than the negligence or willful misconduct of PogoZone.
RESALE OF PogoZone SERVICES.
Customer shall not resell or provide free of charge any Service to any third party without first entering into a Contract for Service with PogoZone which permits these activities.
DIGITAL MILLENNIUM COPYRIGHT ACT.
PogoZone will, upon notice specified by the DMCA of a copyright infringement by a copyright holder, block access through any PogoZone Service to any allegedly infringing materials. If Customer is affected by such a notice, it may give a counter-notice pursuant to the DMCA to PogoZone, and PogoZone will forward the counter-notice to the copyright holder. If the copyright holder does not file a legal action against Customer within fourteen (14) days as provided by the DMCA, PogoZone will re-instate access to the alleged infringing materials.
INDEMNIFICATION.
PogoZone and Customer shall indemnify, defend and hold the other harmless from and against any expenses, including reasonable attorneys' fees, which result from a claim, or proceeding brought by a third party for (1) the infringement or misappropriation by the indemnitor of intellectual property or (2) personal injury caused by the negligence or willful misconduct of the indemnitor. Customer shall indemnify, defend and hold harmless PogoZone from and against any expenses, including reasonable attorneys' fees, resulting from or arising out of a claim or proceeding brought by a third party as a result of damage to a PogoZone Facility or equipment caused by Customer or its representatives. PogoZone shall indemnify, defend and hold harmless Customer from and against any expenses, including reasonable attorneys' fees, resulting from or arising out of a claim or proceeding brought by a third party as a result of damage to equipment or property of Customer caused by PogoZone or its contractors, agents, guests, other customers, or licensees. Each party's indemnification obligations shall be subject to its (1) receiving prompt written notice of the existence of a claim subject to indemnification; (2) having the right, at its option, to control the defense of the claim; and (3) receiving the reasonable cooperation of the indemnified party in the defense of the claim.
TRANSFER; ASSIGNMENT.
Customer may not assign or transfer its rights and obligations under a Contract for Service without the prior written consent of PogoZone, which consent PogoZone may condition on Customer's agreement to remaining bound by the Contract for Service to pay PogoZone for Services utilized by Customer's assignee or transferee. PogoZone may assign or transfer its rights and obligations under a Contract for Service without Customer's consent.
NOTICES.
Notices and other communications between PogoZone and Customer which are required by or specified in the Contract for Service may be delivered by electronic mail.
Communications related to the Contract for Service may be directed to PogoZone at support@pogozone.com. Customer shall provide PogoZone with a valid email address to be used by PogoZone for communications related to the Contract for Service and shall update that address as needed. PogoZone shall fulfill its obligations under the Contract for Service by providing Customer with notice at the email address most recently provided to PogoZone by Customer for use in providing notices pursuant to the Contract for Service.
MODIFICATIONS TO AGREEMENTS.
PogoZone will maintain the current version of the General PogoZone Terms and Conditions and of the Terms and Conditions governing specific PogoZone Services on PogoZone's website. PogoZone will notify Customer of any major modifications PogoZone makes to those terms and conditions at the time it posts the modifications on its website. Customer's use of any Service after PogoZone notifies Customer of modifications to the Terms and Conditions governing the Service shall constitute Customer's acceptance of the modifications.
DISPUTE RESOLUTION.
The Contract for Service shall be governed by the laws of the State of Washington. The location of any legal proceeding arising out of or related to the Contract for Service shall be in Bellingham, Washington. The prevailing party in any legal proceeding arising out of or related to the Contract for Service shall be entitled to receive its reasonable attorneys' fees and court costs incurred in the proceeding, including in any appellate proceedings.
SEVERABILITY.
If any part of the Contract for Service, including the General PogoZone Terms and Conditions and the PogoZone Terms and Conditions governing specific PogoZone Services, is found to be unenforceable or unlawful, then that provision shall be deemed severable and shall not affect the validity and enforceability of any remaining provisions of the Contract for Service.
