These terms and conditions ("Terms") govern the provision by Progressive Technologies and the use by the customer ("Customer") of the Progressive Technologies family of services ("Services"). References in these Terms to "Customer" include individuals authorized by Customer to use the Services, except where the context clearly requires otherwise. By ordering and using the Services or any portion thereof, Customer agrees as follows: 1. The Services. The Services consist of various forms of web hosting, terminal server services, design, monitoring, management, maintenance, development, managed security services, and other Internet-related services. Additional features and services may be made available as announced by and under terms and conditions established by Progressive Technologies, including without limitation any changes to these Terms made by Progressive Technologies from time to time hereafter and provided to Customer in writing. The Services and all features or aspects thereof, whether described herein or in any such additional materials, shall continue to be governed by and provided subject to these Terms unless or except to the extent that a separate agreement has been signed by Customer and Progressive Technologies specifically relating to such additional features or services which expressly makes exception to these Terms. 2. Term. Customer's agreement for the use of the Services will be in effect from the date Customer's Order is accepted by Progressive Technologies as provided below, and, unless terminated earlier as set forth herein, shall continue thereafter for the minimum term (if any) set forth in such Order. If no minimum term is specified in such Order, or if the Services continue beyond such minimum term without execution by both parties of an extension to such Order, the Services will be provided on a month-to-month basis at the then prevailing month-to-month rates for the Services until either party gives the other at least thirty (30) days written notice of termination of the Services. 3. Rates and Charges. The rates and charges payable by Customer for the services shall be as set forth in the Customer's Order(s) which have been accepted by Progressive Technologies as provided herein, and shall be computed in accordance with Progressive Technologies' rate schedules. Rates and charges are subject to change by Progressive Technologies on thirty (30) days notice, except that if Customer has elected a minimum term for the Services in its Order. Then the rates for the Services in effect at the time of the Order shall remain in effect for the duration of such minimum term (unless otherwise provided in such Order). Customer will be invoiced monthly for usage of the Services. Payment must be received by Progressive Technologies within 30 days after the date of the invoice. Customer will pay or reimburse Progressive Technologies for any and all sales and use taxes, duties, or levies imposed by any authority, government, or government agency (other than taxes levied on Progressive Technologies' net income) in connection with Customer's usage of the Services. If any payment due hereunder is not made within thirty (30) days after the invoice date, late charges of one and one-half percent (1 1/2%) per month will be computed in next monthly invoice. Late charges shall be due and payable with respect to such payment. 4. Customer's Responsibilities. (a) As between Customer and Progressive Technologies, Customer is responsible for: (i) assuring that its authorized users comply with the provisions of these Terms and that unauthorized persons do not gain access to or use the Services through user names, passwords, or other identifiers assigned to Customer pursuant to these Terms; (ii) timely payment of all charges for usage of the Services applicable to its account whether or not by authorized users or for authorized purposes; and (iii) performing its other obligations under these Terms. Customer shall not use the Services in any way which would be or would assist any third party to be in violation of any law, these Terms or any Acceptable Use Policy applicable to the Services. Customer shall not transmit or publish on or over the Services any information, software or other content which violates or infringes upon the rights of any others or use the facilities and capabilities of the Services to conduct any business or activity or solicit the performance of any activity which is prohibited by law. Customer shall comply with all applicable laws, rules and regulations in connection with the Services. (b) If Customer is obtaining Web Site or Application Hosting or related Services hereunder, Customer shall provide all relevant Customer-specific or other graphics, text and other information or other content desired by Customer to be incorporated into Customer's Web Site or hosted application in a timely manner, and such other related information or documentation as is reasonably requested by Progressive Technologies for purposes of facilitating Progressive Technologies' provision of Services to Customer. (c) Delay or failure by Customer to fulfill its responsibilities may result in an adjustment to the costs or the schedule for delivery of the Services, and shall release Progressive Technologies from its obligations hereunder to the extent that Progressive Technologies is adversely affected by such Customer delay or failure. 5. Progressive Technologies' Responsibilities. Progressive Technologies agrees to the following responsibilities (subject to the limitations set forth in these Terms): (a) Progressive Technologies will operate the Services in accordance with its standard policies and procedures and will use commercially reasonable efforts to make the Services available to Customer as described in these Terms. Progressive Technologies will give Customer reasonable notice of scheduled downtimes for maintenance. (b) Progressive Technologies will notify Customer of any changes in the rates or charges for the Services, as well as any changes in the features of the Services or in Progressive Technologies' policies in the operation of the Services which are reasonably expected to materially affect Customer's use thereof. (c) Progressive Technologies will use a reasonable degree of care to maintain the secrecy of any of Customer's passwords which are in its possession, but Progressive Technologies shall not be liable for any unauthorized access to or use of the Services or Customer's Network by third parties. (d) Upon notification from Customer of any interruption or malfunction in the Services or a need for reconfiguration of Customer's Services, Progressive Technologies will use reasonable efforts to cause the same to be repaired or reconfigured. Progressive Technologies shall have the right to access Customer's Services for the purpose of performing such repairs or reconfiguration or confirming Customer's compliance with its obligations with respect to the Services. 6. Limitation of Warranties and Liability; Disclaimer of Warranties. CUSTOMER EXPRESSLY AGREES THAT USE OF THE SERVICE IS AT CUSTOMER'S SOLE RISK. NEITHER PROGRESSIVE TECHNOLOGIES NOR ANY OF ITS UNDERLYING SERVICE PROVIDERS, INFORMATION PROVIDERS, LICENSORS, EMPLOYEES, OR AGENTS WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES PROGRESSIVE TECHNOLOGIES OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, INFORMATION PROVIDERS, LICENSORS, EMPLOYEES, OR AGENTS MAKE ANY WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE SERVICE. THE SERVICE IS PROVIDED ON AN "AS IS", "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE, OTHER THAN THOSE WARRANTIES (IF ANY) WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION, OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS SERVICE AGREEMENT, ALL SUCH WARRANTIES BEING EXPRESSLY DISCLAIMED. NEITHER PROGRESSIVE TECHNOLOGIES NOR ANY OF ITS UNDERLYING SERVICE PROVIDERS, INFORMATION PROVIDERS, LICENSORS, EMPLOYEES, OR AGENTS SHALL HAVE ANY LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES SUFFERED BY CUSTOMER OR ANY OTHER PARTY AS A RESULT OF THE OPERATION OR MALFUNCTION OF THE SERVICE, REGARDLESS OF WHETHER OR NOT SUCH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER EXPRESSLY ACKNOWLEDGES THAT THE PROVISIONS OF THIS SECTION SHALL ALSO APPLY TO ALL CONTENT OR OTHER SERVICES AVAILABLE THROUGH THE SERVICE. CUSTOMER AGREES THAT CUSTOMER WILL NOT IN ANY WAY HOLD PROGRESSIVE TECHNOLOGIES OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, INFORMATION PROVIDERS, LICENSORS, EMPLOYEES, OR AGENTS RESPONSIBLE FOR ANY SELECTION OR RETENTION OF, OR THE ACTS OR OMISSIONS OF, THIRD PARTIES IN CONNECTION WITH THE SERVICE (INCLUDING THOSE WITH WHOM PROGRESSIVE TECHNOLOGIES MAY CONTRACT TO OPERATE VARIOUS AREAS ON THE SERVICE). 7. Remedies of Customer. Customer's sole remedy for any failure or non performance of the Services (including any associated Equipment, Software or other materials supplied in connection with the Services) shall be (i) for Progressive Technologies to use commercially reasonable efforts to effectuate an adjustment or repair of the Services and, in the event such failure or non-performance results in Service downtime which exceeds the period of time specified in the applicable service level agreement portion (if any) of any applicable Order or Service Description, to receive a refund or credit of or against any charges otherwise payable for the Services for the period of service downtime as provided for in the applicable service level agreement portion (if any) of any applicable Order or Service Description, or (ii) if such failure or non-performance results in Service downtime or degradation so substantial as to render the Service essentially unavailable to or unusable by Customer for normal use, to terminate the Services for default by Progressive Technologies in the manner provided in these Terms. Unless specified to the contrary in any applicable service level agreement portion of any applicable Order or Service Description, the maximum credit for service downtime or other failure shall not exceed the total monthly bill to the Customer for the Services for the month in which such downtime or failure occurs. 8. Disclaimer of Liability. Progressive Technologies and its underlying service providers, information providers, licensors, employees, or agents shall not be responsible for the use made of the Services by Customer, its authorized users, or any other customer or third party. Without limiting the generality of the foregoing, Progressive Technologies and its underlying service providers, information providers, licensors, employees, or agents shall not be liable to Customer or any of Customer's users for any lost profits or other consequential damages, even if such parties have been advised of the possibility of such damages; any claim or other action against Customer by any third party (except as set forth in the section below on infringement); any act or omission of any other entity furnishing products and services which are used by Customer in connection with the Services or for failure of any products or services provided by Customer; or any damages or losses caused by the fault or negligence of Customer or Customer's failure to perform Customer's responsibilities. 9. Limitation of Liability. In the event that a court should hold that the limitations of liabilities or remedies available as set forth in these Terms, or any portions thereof, are unenforceable for any reason, or that any of Customer's remedies under these Terms fail of their essential purpose, Customer expressly agrees that under no circumstances shall Progressive Technologies' total liability (nor that of any of its underlying service providers, information providers, licensors, employees, or agents) to Customer or any party claiming by, through or under Customer for any cause whatsoever, and regardless of the form of action, whether in contract or in tort, including negligence, in the aggregate, exceed the amount of charges paid by Customer for use of the Services during the twelve-month period preceding the date such claim first arose. 10. Indemnification. (a) If promptly notified in writing of any action brought against Customer based on a claim that the Services infringe a United States patent, copyright, trademark, or other intellectual property right, Progressive Technologies will defend that action at its expense and will pay any and all fees, costs or damages that may be finally awarded in that action and/or a settlement resulting from it (provided that Customer shall permit Progressive Technologies to control the defense of such action and shall not make any compromise, admission of liability or settlement or take any other action impairing the defense of such claim without Progressive Technologies' prior written approval). If a final injunction is obtained against Customer prohibiting usage of the Services by reason of infringement of a United States patent, copyright, trademark, or other intellectual property right, Progressive Technologies will, at its option, either: (1) at its expense procure the right for Customer to continue using the Services or (2) direct Customer to cease using the Services. In the latter event, the Services shall terminate immediately. (b) Customer will indemnify and save harmless Progressive Technologies from and against all loss, liability, damage, and expense, including all reasonable counsel fees, due to claims for infringement of patents, copyright, trademark, or other intellectual property rights, or due to any other claims or causes of action by third parties of any nature whatsoever, arising from the use in connection with the Services of equipment, software or information not provided by Progressive Technologies, or otherwise relating to or arising out of Customer's use of the Services. 11. Force Majeure. Progressive Technologies shall not be responsible for any delay or failure in delivery or performance of any of its duties hereunder due to acts of God, acts or omissions of any regulated telephone network or any other occurrence commonly known as force majeure, including war, riots, embargoes, strikes, or other concerted acts of workers (whether of Progressive Technologies or others), casualties or accidents, or any other causes or circumstances whether of a similar or dissimilar nature to the foregoing, which prevent or hinder the delivery of the Services. Progressive Technologies may cancel or delay performance hereunder for so long as such performance is delayed by such occurrence or occurrences, and in such event Progressive Technologies shall have no liability to Customer. 12. Termination and Default. (a) Progressive Technologies may, at its sole discretion, terminate any Customer Order and discontinue Customer's access to and use of the Services, if: (i) Customer fails to pay any amount within 10 days after written notice that the same is delinquent; or (ii) Customer breaches any of the terms, conditions, obligations, or representations contained in these Terms; or (iii) Customer shall be in default under any other agreement with Progressive Technologies; or (iv) Customer becomes the subject of a voluntary or involuntary bankruptcy, insolvency, reorganization, or liquidation proceeding, makes an assignment for the benefit of creditors, or admits in writing its inability to pay debts when due, or (v) Customer's equipment or use of the Services interferes with the Services or any other user. In the event of a default by Customer as specified in this section, Progressive Technologies shall also be authorized to retain all payments made hereunder and to recover the full unpaid balance of the charges applicable to the remainder of the then current minimum term of Customer's Order for the Services. In addition, if Progressive Technologies reasonably determines that the continuation of the Services has become impractical or unfeasible for any technical, legal, regulatory or other reason, Progressive Technologies may terminate the Services at any time. Progressive Technologies will, in such event, provide Customer with at least thirty (30) days prior notice of such termination if reasonably practical. (b) If Customer has elected a minimum term for the Services and then cancels its Services or any portion thereof (or has its Services or any portion thereof terminated for default as provided above) prior to the expiration of such minimum term, Customer shall be obligated to pay Progressive Technologies a termination charge equal to the amount (if any) specified in the applicable Order; otherwise the termination charge shall be equal to 100% of the total monthly charges (other than variable usage charges) which would have become due for the remainder of the scheduled minimum term if such cancellation had not occurred. 13. General. (a) Except as otherwise set forth herein, all notices from either party to the other shall be delivered either personally or by first-class, pre-paid U.S. mail. Notice to either party shall be sent to the respective address as set forth in Customer's order for the Services, unless written notice of a change of address shall have been previously given by either party. (b) Customer may permit its customers or other authorized users to utilize the Services as part of business operations or services provided by Customer, subject to these Terms. However, Customer's Services may not be assigned or transferred by Customer without the prior written consent of Progressive Technologies. Any attempt by Customer to assign or transfer any of the rights, duties, or obligations of Customer with respect to the Services without Progressive Technologies' written consent shall be void, and no assignment or transfer shall release Customer from any of its obligations with respect to the Services. Progressive Technologies may assign, delegate or otherwise transfer its rights or obligations hereunder, in whole or in part, at any time, but no such assignment shall release Progressive Technologies from ultimate responsibility for the Services hereunder. (c) No action, regardless of form, arising out of the Services or these Terms may be brought by either party more than two years after the cause of action has arisen. (d) These Terms, including any orders for the Services from Customer which have been accepted by Progressive Technologies, set forth the entire agreement between Customer and Progressive Technologies respecting the Services, and supersede any prior written or verbal proposals, agreements, understandings or other discussions respecting the same. Progressive Technologies will not be bound by any provision contained in any purchase order, confirmation, correspondence or other communication from Customer which is at variance with, in addition to or conflicts with any provision of these Terms, unless such variance, addition or conflict is specifically identified in a written agreement signed by Customer and an authorized representative of Progressive Technologies which expressly references the appropriate provision of these Terms. No agent, employee, or representative of Progressive Technologies has any authority to bind Progressive Technologies to any affirmation, representation, or warranty unless the same is specifically set forth in these Terms or in a written agreement as provided above. (e) These Terms and the Services shall be governed by the laws of the State of North Carolina, without regard to its conflicts of laws provisions. If any provision or provisions hereof shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not be in any way affected or impaired thereby. (f) The remedies of the parties set forth herein are not exclusive unless expressly so stated herein. Progressive Technologies Terms & Conditions Revised 11-26-2002 Copyright © 1998-2008 Progressive Technologies.