This Agreement ("Agreement") is entered into between Practical Data, Inc. ("PD"), an Illinois corporation located
at 316 Franklin Street, Geneva, Illinois 60134 and you and the business entity you own to operate your ecommerce
store (collectively, "You"), for the purpose of hosting PD’s My Account™ system and the additional store features
(collectively, “Software”) that You requested for your ecommerce store. These are the only terms and conditions
with respect to the hosting services. The parties agree as follows:
1.Hosting Service. PD will host the Software you have licensed for one website that You operate (the
“Service”). You may access and use the Software only while this Agreement is in effect. PD will not be responsible
for any Software downtime, whether planned or unplanned, caused by hardware problems, internet connectivity,
power outages, or any other causes. PD will work to restore Software availability if an outage does occur, although
PD makes no guarantee of response time. You acknowledge that PD is not providing any service level guarantees
2.Use Restrictions. You may not use the Service to engage in, foster, or promote illegal, abusive, or
irresponsible behavior, including:
3.Fees/Payment. You agree to pay PD an advance annual Service fee for each 12-month term of this
Agreement. The Service fee for the initial 12-month term is indicated on the Service fee page and is based on Your
average number of daily transactions. If your average number of daily transactions increase, Your annual fee will be
increased after notice of the change. Each subsequent annual Service fee will be based on Your order volume and
traffic at the website for which the Software is hosted and may be increased during the term based on increases as
described in the Service fee page. Each renewal payment is due before the current 12-month term expires. All
payments must be with an authorized credit card. If this Agreement is terminated early, You will not be entitled to a
prorated refund of any license fees.
4.Disclaimer. PD MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY THAT THE SERVICE WILL BE
UNITERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. YOU ACKNOWLEDGE THAT THERE ARE RISKS INHERENT IN
INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF YOUR PRIVACY, CONFIDENTIAL INFORMATION, AND
PROPERTY. PD DISCLAIMS ANY AND ALL WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT AND PROVIDES THE SERVICE“AS IS” AND “AS
5.Limitation of Liability. PD AND ITS DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS, SHALL NOT BE
LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT
LIMITED TO, LOST PROFITS, DATA OR USE, INCURRED BY YOU OR ANY THIRD PARTY, UNDER ANY THEORY OF
LIABILITY, EVEN IF PD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PD’S MAXIMUM LIABILITY UNDER
THIS AGREEMENT WILL NOT EXCEED THE AMOUNT OF THE ANNUAL SERVICE FEE PAID FOR THE TERM IN WHICH THE
6.Termination. This Agreement will terminate if you do not renew it by paying the required annual Service
fee prior to the end of the current 12-month term and it will terminate when Your Software license ends or is
terminated. PD may also terminate this Agreement and the right to use the Software, with notice to You if (a) You
breach any of the use restrictions in Section 2 (including excessive use of the Service); or (b) start any bankruptcy,
receivership, insolvency, reorganization, or other similar proceedings. Your Software-related data stored with PD will
be exported to You in raw form within 14 days after this Agreement terminates.
7.Remedies. PD’s remedies are cumulative. You acknowledge that breach of this Agreement will
irreparably harm PD and cannot be remedied solely with money damages. PD will be entitled to injunctive relief in
addition to any and all other remedies at law that it may have under this Agreement, including PD’s ability to end your
access to and use of the Software. PD is entitled to its attorneys’ fees and costs incurred in enforcing this Agreement.
8.Governing Law/Arbitration. This Agreement shall be construed and governed under the substantive
laws of the State of Illinois, without effect of conflict of laws provisions. All actions brought related to this Agreement
will be in the Circuit Court for the 16th Judicial Circuit, Geneva, Illinois or the U.S. District Court for the Northern
District of Illinois, Eastern Division, Chicago, Illinois.
9.Severability. If any clause or provision herein is adjudged invalid or unenforceable by a court of
competent jurisdiction or by operation of law, it shall not affect the validity of any other clause or provision which
shall remain in full force and effect.
10.Waiver of Breach. The failure of either party to require the performance of the other shall in no way
affect the respective rights of either party to enforce a previously waived provision and a waiver of any breach shall
not be construed as a waiver of any succeeding breach or as a waiver or modification of the provision itself.
11.Entirety and Amendment. This Agreement supersedes all prior understandings between the parties
about the Software and may only be modified in a writing signed by both parties.
12.Assignment. The Agreement is binding upon successors and assignees of the respective parties.
However, You may not assign or transfer its interests, rights, or obligations under this Agreement by written
agreement, merger, consolidation, operation of law, or otherwise, without the prior written consent of an authorized
executive officer of PD. Any attempt to assign this Agreement by You shall be null and void. For the purposes of this
Agreement, the acquisition of an equity interest in You of greater than 25% by any third party or sale of all or
substantially all Your assets shall be considered an “assignment.”
13.Notices. All notices required or permitted to be given under this Agreement shall be sufficient if in
writing and either hand-delivered, faxed with receipt confirmation, mailed first class, certified mail, return receipt
requested, or by national overnight carrier (UPS, FedEx, etc.) to the other party at the address set forth above.
Notices shall be effective on the date received.