Application Hosting Services AgreementIn consideration of your ongoing payment of the fees for the Service type you selected, and by clicking on the “I Agree” button on our purchasing website page, or by using the Services (as defined herein), and effective as of the date on which Summit Hosting sends a welcome email to Customer regarding the availability of the purchased Services (the “Effective Date”), you agree that this Application Hosting Services Agreement which includes the Standard Terms and Conditions below and our pricing website page available here, which is incorporated herein by reference (together, “the “Agreement”, which may be amended from time to time as described below), form a binding agreement between you (“Customer”, “you” or “your”) and Summit Hosting LLC (“Summit Hosting”, “we”, “us” or “our”). The individual who has clicked through the required consent box represents to Summit Hosting that the individual (i) is at least 18 years of age, (ii) has read and understood the terms and conditions of this Agreement, (iii) has full legal authority to bind Customer to this Agreement, and (iii) agrees, on behalf of Customer, that this Agreement forms a binding agreement between Customer and Summit Hosting. If Customer does not agree to be bound by this Agreement, Customer and its authorized users must not access or use the Services.
Standard Terms and ConditionsIMPORTANT–THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION REQUIRING ALL CLAIMS TO BE RESOLVED BY WAY OF BINDING ARBITRATION, AND ALSO CONTAINS A CLASS ACTION WAIVER. PLEASE CAREFULLY REVIEW SECTION 15 OF THIS AGREEMENT FOR MORE INFORMATION. 1. DESCRIPTION OF SERVICES
A. Services; Grant of Right to Access. Subject to Customer’s continued compliance with this Agreement Summit Hosting agrees to host the third party software applications as set forth on the Order Form (“Hosted Applications”) and provide dedicated application-level access thereto to Customer (“Services”). The Hosted Applications will be installed on Summit Hosting’s (or its service providers’) servers (the “Server”) and accessed via a server area designated for Customer. Subject to Customer’s timely payments and its compliance with this Agreement, Summit Hosting grants to Customer, as of the Effective Date, the right to access the Hosted Applications. Summit Hosting has the right to verify the validity of all third party licenses and to suspend or terminate access to any Hosted Applications for which Summit Hosting believes may not be validly licensed.
A. License of Server Content. Customer agrees to and does hereby grant to Summit Hosting a nonexclusive, perpetual, royalty-free, transferrable, and sublicensable right and license to access, use, store, transmit, copy, display, retain, transfer, and modify Customer Data (as defined below) solely in conjunction with Summit Hosting’s performance of the Services.2. Confidentiality of Customer Data.
A. “Customer Data” means all data and information relating to Customer’s business provided to, or collected, processed, or stored by Summit Hosting or its service providers in connection with the Hosted Applications. “Customer Data” does not include data created by Summit Hosting related to Customer or Customer’s use of the Services (such as, but not limited to, analytics, metrics, reports, or data regarding cost, usage, analytics, etc.).
B. Confidentiality of Customer Data. Customer retains ownership of all Customer Data received by Summit Hosting. Summit Hosting acknowledges that Customer Data is confidential and/or proprietary to Customer. Summit Hosting agrees not to disclose to any third party any Customer Data without Customer’s prior written consent, unless required to do so by subpoena, court order, or other lawful directive (as discussed further below) or unless requested by licensors of Hosted Applications, and then, with regard to such licensors, disclosing only information regarding the number and type of Customer’s licenses in use. In either of the foregoing two events, Summit Hosting will notify Customer of such requests, unless disclosure is prevented by law. If Summit Hosting becomes legally compelled (by oral questions, interrogatories, request for information or documents, subpoena, civil investigative demand or similar process) to disclose any Customer proprietary information, Summit Hosting shall provide Customer with prompt written notice, unless such notice is prohibited by the order or request, so Customer may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Section 2.B. If such protective order or other remedy is not obtained, or compliance with the provisions of this Section 2.B is waived, Summit Hosting shall disclose only the minimum amount of Customer proprietary information that is legally required and shall exercise reasonable efforts to obtain reliable assurance that confidential treatment will be accorded the Customer proprietary information so disclosed. Summit Hosting shall not be liable for any disclosures made in compliance with this Section 2.B.3. Data Security.
A. Summit Hosting shall maintain a written information security program, and use technical, operational, and logical measures commercially reasonable in the hosted software industry which are to designed to: (i) preserve and protect the security, availability, integrity and confidentiality of Customer Data, and (ii) protect Customer Data against unauthorized access, loss, destruction, or alteration.
B. Authorized Access.
i. Summit Hosting will provide access to the applicable server to authorized individuals with user passwords assigned to Customer, authorized Summit Hosting personnel and, where necessary, its service providers. At all times during this Agreement, Customer shall designate one or more employees to serve as the “User Administrator” for Customer. The User Administrator shall solely be responsible for authorizing, issuing and deauthorizing a login name, password, and any other credentialing information (collectively, “Login Credentials”) to its authorized users (“Authorized Users”), administering security profiles of Authorized Users, and inputting data regarding the Authorized Users. Customer agrees that each Authorized User will be assigned unique Login Credentials, and that no Login Credentials will be shared or otherwise utilized by two or more individuals at any time. Customer shall be solely responsible for the security of Login Credentials issued to each Authorized User. Customer shall timely deauthorize all Authorized Users that are no longer to have access to the Software. Customer agrees to comply with the procedures specified by Summit Hosting from time to time regarding obtaining and updating passwords or other security measures for the Software. Customer is responsible for all acts and failures to act of its Authorized Users, and for ensuring that all Authorized Users are permitted by applicable law to access the Customer Data. Summit Hosting shall have no responsibility or liability for any damage or loss to Customer or third parties caused by the failure of Customer to deauthorize an Authorized User (e.g., a terminated employee).
ii. The safety and security of your information also depends on you. Customer’s users (“Users”) should maintain good internet security practices. Users are responsible for keeping this password confidential. Users should not share their password with anyone. Users must prevent unauthorized access to User’s account by selecting and protecting your password appropriately and limiting access to User’s computer or mobile device and browser by signing off after Users has finished accessing the account. If a User’s email or other account is compromised this could allow access to the account with us if User has given up those details and/or permitted access through those accounts. If User’s account is compromised it could be used to ask us to reset a password and gain access to your account with us. If a User thinks that any of account has been compromised the User should change the account credentials, and in particular make sure any compromised account does not allow access to Customer’s account. The information Users share in public areas may be viewed by other users. We will never email a User to ask for a password or other account login information. If a User receive an email with such a request, please send it to us so we can investigate.
iii. Customer agrees to and does hereby release and forever discharge Summit Hosting and is affiliates, subsidiaries, parents, officers, directors, employees, successors and assigns and contractors (collectively, “Summit Group”), and Customer will indemnify, defend and hold Summit Group harmless, from any and all past, current, and future liability, claims, demands, damages, losses, fines, penalties, assessments, private rights of action, or other actions, of whatever kind of nature, either in law or equity, as well as costs (including, but not limited to, attorneys’ fees and costs), which arise from any failure of Customer or its service providers to maintain the security of Customer’s email or other accounts which results in unauthorized access by a third party to such account and the transfer of funds by us in reliance of instructions purporting to originate from Customer.
C. Customer Data Backups. Summit Hosting shall back up all Customer Data daily, seven days per week for which commercially reasonable measures standard in the hosted software industry have been implemented which are designed to isolate such location and backups from ransomware and other malware attacks of Customer’s and Summit Hosting’s computers, systems, and networks, and, Summit Hosting shall verify the effectiveness of such backups at least on a calendar monthly basis. Daily data backups are retained for not less than fifteen (15) days. Customer agrees that the backup service may be unavailable or inaccessible during Down Time. All Hosted Applications include the ability and procedure for Customer to make offline backups of Customer Data which Customer can and should store in a safe place. Customer is responsible for separately backing up its Customer Data. Summit Hosting shall not be responsible for any loss or unavailability of Customer Data which is available for backing up by Customer. Summit Hosting maintains a written disaster recovery and business continuity plan.
i. If Customer Data is corrupted, rendered unavailable, or lost due to system outage, application error or customer error Summit Hosting will only be responsible for recovering the Customer Data to a specific point in time, based on the most recent available backup. Summit Hosting is not liable for Customer Data that has become corrupted, rendered unavailable, or lost after the most recent backup that Summit Hosting has done.
ii. Summit Hosting routinely deletes Customer Data (including from backups) after thirty (30) days of any termination of a customer’s Service.
D. Information Shared with Service Providers. As a condition of utilizing the Services, Customer acknowledges and agrees that Summit Hosting may disclose Customer Data to Summit Hosting’s affiliates, subsidiaries, parents, and service providers, but only as may be required to provide the Services. All such entities shall be under written obligations of confidentiality to maintain Customer Data as confidential.
E. Cooperation with Law Enforcement and Government Agencies; Required Disclosures. Customer acknowledges that Summit Hosting has the right to investigate and act on any violation of this Agreement, including, but not limited to, intellectual property, publicity and privacy rights infringement, and security issues, to the fullest extent of the law. Summit Hosting may involve and cooperate with law enforcement authorities in investigating and prosecuting users who violate this Agreement. Customer acknowledges that Summit Hosting has no obligation to monitor Customer’s access to or use of the Hosted Applications or technical connectivity support, but Summit Hosting has the right to do so for the purpose of providing the Hosted Applications, to ensure Customer’s compliance with this Agreement, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental or regulatory body. Customer understands and agrees that Summit Hosting may disclose information Customer or Customer’s users upload to or obtain from the Hosted Applications if required to do so by law, court order, legal process, or subpoena, including to respond to any government or regulatory request, or if Summit Hosting believes that such action is necessary to (i) conform to the law, comply with legal process served on Summit Hosting or its affiliates or partners, or investigate, prevent, or take action regarding suspected or actual illegal activities; (ii) to enforce this Agreement (including for billing and collection purposes), take precautions against liability, to investigate and defend ourselves against any third-party claims or allegations, or to assist government enforcement agencies; or, (iii) to exercise or protect the rights, property, or the safety of Summit Hosting, its users, or others.4. SERVICE AVAILABILITY
A. Application Server Availability. Summit Hosting is fully committed to providing quality service to all Customers. Summit Hosting will use commercially reasonable efforts to have the Service, including the Website, available 24 hours per day, 7 days per week, excluding any (i) scheduled maintenance as described below, (ii) unscheduled maintenance downtime, or (iii) emergencies due to events beyond its control (scheduled maintenance and unscheduled downtime together are referred to as “Downtime”). Summit Hosting’s goal is to maintain a 99% monthly average of scheduled availability of its Servers. Server availability is defined as Customer’s ability to connect to Customer’s application and Customer Data through a web browser. Summit Hosting only monitors access to Customer’s Data on the Server designated for Customer.
B. Maintenance and Downtime.
i. Scheduled Maintenance. To ensure optimal performance of the Servers, Summit Hosting performs maintenance on the Servers on a routine basis. Such maintenance often requires taking Summit Hosting’s servers off-line. Summit Hosting reserves the right to perform scheduled maintenance, during which time some or all of the Services or Hosted Applications may not be available or may have slow response times. This Server unavailability is not included in Server Down Time calculations. Normal scheduled Down Time is during off-peak hours (12 a.m. – 6 a.m., Eastern US time). Summit Hosting will use commercially reasonable efforts to send advance notice to Customers.
ii. Unscheduled Maintenance. Unscheduled maintenance may be required to resolve issues that are critical for Customers and/or performance of the Services. Summit Hosting will notify Customers when possible via email prior to the unscheduled maintenance. When and where practicable, we will try to conduct unscheduled maintenance between 9:00 p.m. and 3:00 a.m., Eastern US time.
iii. Other Downtime. Customer also understands that the Services may be inaccessible during periods of time wherein Customer has scheduled upgrades or modifications to the Service. Maintenance times noted above are approximate and Summit Hosting reserves the right to change such times. If maintenance standard times are changes, we will notify you.
C. Monitoring. To verify that the Server is available, Customer should attempt to login to each designated Server every 15 minutes using industry-standard monitoring tools. If a Server does not respond, the Server is considered non-operational and is automatically rebooted. If rebooting the Server does not solve the problem, the incident should be immediately escalated to Summit Hosting’s Connectivity Support Center. In cases where two or more consecutive pings fail, the Server downtime will be registered as the number of minutes between the first and the last failed pings. Downtime of less than 5 minutes in duration is not recorded. Summit Hosting calculates Server uptime based on this type of server monitoring.
D. Network Availability. “Availability” means Summit Hosting’s network’s ability to pass incoming and outgoing TCP/IP traffic. Interruptions of Service or access due to problems with Customer’s ISP or connection or issues on Customer’s network are beyond Summit Hosting’s control and are not included in downtime calculations. Interruptions of Service caused by denial of service or similar attacks are beyond Summit Hosting’s control and are not included in downtime calculations. Interruptions of service caused by a Force Majeure Event are not included in downtime calculations.
E. Excusable Delays in Availability or Performance. A “Force Majeure Event” means a cause or event beyond the reasonable control of Summit Hosting, including, but not limited to, (i) labor disputes, strikes, or lockouts (but excluding nonunion labor shortage or disputes); (ii) riots, war, acts of terrorism, or other civil disturbance; (iii) fire, flood, earthquake, tornado, hurricane, snow, ice, lightning, or other natural disasters, elements of nature or acts of God, pandemics or epidemics; (iv) outages, cable cuts, power crisis shortages, infrastructure outages or failures, internet failures, interruption or failure of telecommunications carriers or digital transmission links, network congestion, computer equipment failures, telecommunication equipment or other equipment failures, electrical power failures, loss of or fluctuations in heat, light, or air conditioning, all of the foregoing in this Subsection (iv) being of or due to third party providers or utility service providers; (v) acts of computer, system, or network sabotage or file lockup (e.g., ransomware attack), distributed denial of service (DDOS) or other network attacks, intrusion, or other failures; (vi) any law, order, regulation, direction, action or request of the United States, state or local governmental agency, department, commission, court, bureau, corporation or other instrumentality of any one or more of such instrumentality, or of any civil or military authority, or national emergencies, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown; or, (vii) national or regional shortage of adequate power or telecommunications or transportation. Any delay in performance by Summit Hosting caused by a Force Majeure Event is not a breach of the Agreement. The time for performance will be extended for a period equal to the duration of the conditions preventing performance. If the Force Majeure Event renders the Services completely unavailable for more than thirty (30) consecutive days, Customer may terminate the Agreement upon written notice to Summit Hosting, in which case, if Customer promptly requests in writing, Customer will receive a credit of prepaid fees starting from the beginning of the period of unavailability due to such Force Majeure Event.
F. Performance Credits. For Customers who purchase the Annual Initial Term or an Annual Renewal Term, Summit Hosting provides performance credits set forth below.
i. Upon Customer’s written notice to Summit Hosting, if availability to Customer of any Server (excluding those items not included in downtime calculations as set forth herein) for the calendar month is below the Server availability goal level (set forth below), Summit Hosting will credit to Customer, according to the schedule below, a portion of the monthly fees charged for the calendar month during which such goal was not met:
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ii. Credit Requests. To receive the credit, Customer must specifically request it no later than thirty (30) days following the month for which the credit is owed. Customer must provide all dates and times of Server unavailability along with Customer’s account username. This information must be submitted to Summit Hosting’s Connectivity Support Department. Summit Hosting will compare information provided by Customer to the Server availability monitoring data that Summit Hosting maintains. A credit is issued if the unavailability warranting the credit is confirmed. NOTWITHSTANDING ANYTHING IN THIS SECTION 4.F.ii OR ELSEWHERE IN THIS AGREEMENT TO THE CONTRARY, THE TOTAL CREDIT TO CUSTOMER FOR ANY SERVICE SHALL NOT EXCEED 50% OF THE MONTHLY FEES CHARGED FOR THAT SERVICE DURING THE CALENDAR MONTH FOR WHICH THE CREDIT IS TO BE ISSUED. IN ADDITION, CUSTOMER SHALL NOT BE ENTITLED TO ANY CREDIT IF CUSTOMER’S ACCOUNT IS PAST DUE OR SUSPENDED.5. PRICING AND PAYMENT
A. Monthly amounts for subscription access fees are invoiced in advance. Amounts for professional services are invoiced and sent electronically and payment is due within thirty (30) days of the invoice date. All amounts invoiced and all payments shall be in U.S. dollars. Summit Hosting reserves the right to suspend access to the Hosted Applications if payment is overdue, and Summit Hosting will provide at least five (5) days’ written notice by email prior to such suspension.
B. Summit Hosting expressly reserves the right at its sole discretion to modify pricing to Customer at any time. Summit Hosting will notify Customer by email in advance of any pricing adjustment. The amounts due will vary depending on which Hosted Applications Services have been purchased. Revised amounts will be charged to your credit card or ACH, and the revised pricing will appear on Summit Hosting’s invoices.
C. Payment Authorization. Customer authorizes the credit/debit card or ACH/direct debit account provided by Customer to Summit Hosting to be charged simultaneously with the creation of the Customer’s invoice. If the payment is declined, Summit Hosting may attempt to run the payment again at its sole discretion. Summit Hosting shall not be liable to Customer for any charges incurred if Customer’s credit/debit card or ACH/direct debit account is suspended, declined, canceled, replaced, or under-funded. Customer is responsible for updating its payment information on file with Summit Hosting in a timely manner. Customer’s account will be considered delinquent (in arrears) and Customer in breach of this Agreement if payment in full is not received by the due date. Payment obligations are non-cancelable and fees paid are fully earned and non-refundable, other than as expressly stated in this Agreement.
D. Interest on Overdue Amounts. Any amounts payable to Summit Hosting by Customer that remain unpaid after the due date shall be subject to a late charge of the lesser of 1.5% of the invoice amount per month from the due date until such amount is paid, or the maximum rate permitted by law. Summit Hosting reserves the right to suspend access to the Platform or any Item if payment is overdue (e.g., if Customer’s card has been declined), provided that Summit Hosting will provide at least five (5) days’ prior written notice to Customer of such suspension under this Section 5.D.
E. Audit of User Counts. User counts are audited monthly. Changes in user counts will result in an increase/decrease of monthly fees. All user count changes are required to be processed through the Summit Hosting ticket system.6. SUMMIT HOSTING’S REPRESENTATIONS AND WARRANTIES
A. Summit Hosting represents and warrants to Customer that it shall use commercially reasonable efforts designed to ensure that Customer’s use of the Hosted Applications and any data, reports, or other information downloaded therefrom will not contain or introduce into Customer’s systems any computer instructions or code that can alter, destroy, shut down, lock out, lock up, encrypt, inhibit or interfere the operation of or access to computer software, databases, data, network, servers, or any related computer environment, including but not limited to other programs’ data storage and computer libraries; programs that self-replicate without manual intervention; instructions programmed to activate at a predetermined time upon a specified event; programs that permit unauthorized access to computer software or hardware or databases; programs that purport to do a meaningful function but are designed for a different and harmful function; and, programs that perform no useful function but utilize substantial computer, telecommunications, memory, or other resources, including viruses, Trojan horses, botnets, spiders, time bombs, protect codes, data destruction keys, trap doors, kill switches, DDOS code, and similar code or devices designed or intended to, or that could reasonably be expected to, (a) disrupt, disable, harm, or otherwise impair the normal and authorized operation of, or provide unauthorized access to, any computer system, hardware, firmware, network, or device on which the Hosted Applications are used; or, (b) damage, destroy, or prevent the access to or use of any data or file without Customer’s prior written consent.
B. Summit Hosting represents and warrants to Customer that all Services shall be performed in a professional and workmanlike manner.
C. Disclaimers. OTHER THAN AS EXPRESSED IN THIS SECTION 6, THE HOSTED APPLICATIONS, THE SERVICES, AND ANY PROFESSIONAL SERVICES RENDERED BY SUMMIT HOSTING ARE PROVIDED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND. NO OTHER WARRANTIES, GUARANTEES, CONDITIONS OR REPRESENTATIONS, WHETHER IMPLIED, STATUTORY OR OTHERWISE, ARE MADE WITH RESPECT TO ANY OF THE SERVICES OR SOFTWARE PROVIDED IN CONNECTION WITH THIS AGREEMENT, AND ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, AND UNINTERRUPTED, ERROR-FREE USE ARE EXPRESSLY DISCLAIMED.7. CUSTOMER’S REPRESENTATIONS AND WARRANTIES
A. No Intellectual Property Violations. Customer represents and warrants to Summit Hosting that Customer Data shall not contain any content, materials, data, work, trademark, trade name, link, advertising, or services that violates any applicable law or regulation or infringes or misappropriates any proprietary, intellectual property, contract or tort right of any third party and that Customer owns the Customer Data and all proprietary or intellectual property rights therein, or has express written authorization from the owner thereof to transmit, store, copy, use and display the content on and within Customer’s server account. Customer also represents and warrants the server content being hosted by Summit Hosting shall not be used in connection with any illegal activity.
B. No Malware. Customer shall use commercially reasonable efforts to prevent any Malware (as defined below) to be uploaded to Summit Hosting’s servers or to the Hosted Application. “Malware” means any of the following: computer instructions or code that can alter, destroy, shut down, lock out, lock up, encrypt, inhibit or interfere the operation of or access to computer software, databases, data, network, servers, or any related computer environment, including but not limited to other programs’ data storage and computer libraries; programs that self-replicate without manual intervention; instructions programmed to activate at a predetermined time upon a specified event; programs that permit unauthorized access to computer software or hardware or databases; programs that purport to do a meaningful function but are designed for a different and harmful function; and, programs that perform no useful function but utilize substantial computer, telecommunications, memory, or other resources, including viruses, Trojan horses, botnets, spiders, time bombs, protect codes, data destruction keys, trap doors, kill switches, DDOS code, and similar code or devices.8. LIMIT OF CONNECTIVITY SUPPORT
A. Connectivity Support. Summit Hosting will engage resources that it deems reasonable in its sole discretion to provide technical connectivity support for the infrastructure required to provide Services to Customer. Customer acknowledges and agrees that Summit Hosting is not responsible for the connectivity support of any specific application installed in Customer’s Hosted Application Server environment. Summit Hosting agrees to make efforts as it deems reasonable to provide limited assistance to Customer or Customer’s designated third-party service provider for the purpose of providing technical connectivity support for Customer’s Hosted Applications. Customer agrees that any third-party service provider will limit the scope of their connectivity support to specific applications, and that Customer is responsible for the actions of said service provider when they are granted access to the Hosted Application environment on Customer’s behalf. Customer acknowledges and agrees that Summit Hosting has no control over the continuous and uninterrupted availability of connectivity support.
B. Connectivity Support Outside of Scope. Summit Hosting may, in its sole discretion, provide connectivity support beyond its normal scope of responsibility hereunder, or during periods of time beyond normal operating hours. Customer acknowledges and agrees that any such extension of Service or hours of operation shall in no manner obligate Summit Hosting, nor creates any liability for Summit Hosting that is otherwise excluded by the terms of this Agreement. Customer also acknowledges and agrees that from time to time, technical connectivity support may be inaccessible or unavailable for any reason, including, without limitation:
i. Periodic maintenance procedures undertaken by Summit Hosting;
ii. Equipment malfunctions; and,
iii. Force Majeure Events.
C. In the event that Customer authorizes Application Hosting to be accessed by third parties, Customer acknowledges and agrees that Summit Hosting has no obligation to provide connectivity support to such third parties and further, that Summit Hosting has no obligation to prevent such third parties from accessing Customer’s Data and no responsibility or liability whatsoever if Customer Data is disclosed to such third parties or to any other person or party as a result thereof. Furthermore, Summit Hosting reserves the right to refuse service to anyone in its sole discretion. Customer or a delegate appointed by Customer and confirmed by Summit Hosting shall serve as the sole liaison between Customer and Summit Hosting for purposes of connectivity supporting third party users.
D. Charges for Customer and Technical Connectivity Support. Customer agrees to pay Summit Hosting for requested support which falls outside of the scope of basic support required for Summit Hosting to fulfil its obligations under this Agreement at Summit Hosting’s then-current hourly rate in increments of thirty (30) minutes. Summit Hosting reserves the right to estimate such fees in advance and require full or partial payment of such fees prior to the commencement of any work being performed.9. TERM
A. This Agreement shall commence on the date on which Customer has accepted by click-through this Agreement and shall continue on a month-to-month basis (the “Term”) until terminated.10. TERMINATION
A. Either party may terminate this Agreement if the other party is in default thereof and, other than payment obligations by Customer, has not cured such default within thirty (30) days of receiving written notice thereof.
B. Summit Hosting may terminate this Agreement immediately, without the opportunity to cure under Section 10.A, (i) if Customer’s use of the Services is abusive or unnecessarily or illegally harasses Summit Hosting or third parties, or (ii) if Customer’s activities deface, defame, embarrass, harm, abuse, threaten, slander or harass third parties, or (iii) for activities prohibited by applicable law, or (iv) for Customer’s practices which encourage unlawful behavior by others. Customer’s use of the Services may be suspended or terminated if Customer’s use of the Services results in, or is the subject of, legal action or threatened or proposed legal action, even if such action is ultimately proven to be without merit.
C. Effect of Termination. Upon receiving Customer’s notice of termination, Summit Hosting will send Customer an email confirming such notice. Upon termination of this Agreement, all rights granted by Summit Hosting under the Agreement shall immediately terminate, and Customer shall have no further right to access or use the Hosted Applications or the Service, and shall immediately cease use thereof. Termination by either party will not relieve Customer of any obligation to pay fees due prior to termination. Summit Hosting will not transfer Customer’s applications or Customer Data to another service provider. In the event that Customer’s service is terminated as a result of a dispute between Summit Hosting and Customer or as a result of Customer’s failure to fulfil Customer’s obligations under this Agreement, Summit Hosting will not be obligated to transfer or manage Customer’s applications or Customer Data. Beyond thirty (30) days from the effective date of termination Summit Hosting shall have no obligation to maintain any Customer Data. Customer should make sure it has a current backup of its Customer Data prior to terminating the Service.
D. Deposits. If Customer has paid a deposit and subsequently terminates this Agreement, then Customer has thirty (30) days from the date Customer notifies Summit Hosting of termination to request return of any unused deposit. Summit Hosting may first apply any Customer deposit to fees owed. If Customer does not request return of a deposit within such thirty (30) days, that deposit is deemed forfeited and may be retained by Summit Hosting.11. SUSPENSION OF SERVICE
A. Summit Hosting may suspend or restrict access to the Services, in whole or in part, upon notice to Customer if: (a) Summit Hosting reasonably believes that Customer has violated any applicable law which may have a potentially adverse effect on Summit Hosting or its other customers; (b) Summit Hosting reasonably believes that it is necessary to protect the servers, systems, infrastructure, data, or information of Summit Hosting or its respective third-party providers or other customers, from a denial of service attack, security breach, introduction of a virus or other malware, ransomware attack, or similar event; (c) requested or ordered by a law enforcement agency, government agency, or similar authority; or, (d) Customer fails to cooperate with Summit Hosting to investigate suspected violations of this Agreement. Upon removal, cessation or mitigation of the underlying cause for any of the above that occurs, Summit Hosting will resume providing access to the affected Services.12. INDEMNIFICATION
A. Customer agrees to indemnify, defend and hold harmless Summit Hosting, together with its agents, representatives, officers, directors, shareholders, owners, members, and employees, from any and all third-party claims, judgments, damages, penalties, fines, costs, losses or liabilities (including without limitation, reasonable attorneys’ fees and court costs) (collectively, “Losses”), to the extent that such Losses are proximately caused in whole or part by the breach of this Agreement by Customer or the negligent act or omission or willful misconduct of Customer or anyone who uses the Services on Customer’s behalf, whether authorized to do so or not. This Section 12 shall survive the termination of this Agreement with respect to any Losses occurring before such termination.
B. Summit Hosting agrees to indemnify, defend and hold harmless Customer, together with its agents, representatives, officers, directors, shareholders, owners, members, and employees, from any and all Losses, to the extent that such Losses are proximately caused in whole or part by the breach of this Agreement by Summit Hosting or the negligent act or omission or willful misconduct of Summit Hosting.
C. This Section 12 shall survive the termination of this Agreement with respect to any Losses occurring before such termination.13. LIMITATION OF LIABILITY.
A. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SUMMIT HOSTING OR ITS AFFILIATES, OR ANY OF SUMMIT HOSTING’S RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO CUSTOMER’S USE OF OR INABILITY TO USE THE SERVICES FOR:
i. PERSONAL INJURY, PROPERTY DAMAGE, OR CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OR CORRUPTION DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, OR COMPUTER FAILURE OR MALFUNCTION;
ii. ANY ACTION CUSTOMER TAKES BASED ON THE INFORMATION CUSTOMER RECEIVES IN THROUGH OR FROM THE SERVICES; iii. CUSTOMER’S FAILURE TO KEEP PASSWORDS OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL;
iv. THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES
v. THE IMPROPER AUTHORIZATION FOR THE SERVICES BY SOMEONE CLAIMING SUCH AUTHORITY; OR,
vi. DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER DURING THE SIX (6) MONTHS OF SERVICES IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE. THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OR CAUSE OF ACTION AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR SUMMIT HOSTING WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
B. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. SUMMIT HOSTING DOES NOT GUARANTEE THE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO THE HOSTED APPLICATIONS OR THE SERVICES, OR ANY RELATED SERVICES. THE OPERATION OF HOSTED APPLICATIONS MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE SUMMIT HOSTING’S CONTROL. UNDER NO CIRCUMSTANCES SHALL SUMMIT HOSTING BE LIABLE FOR ANY DAMAGES THAT RESULT FROM THE USE OF THE HOSTED APPLICATIONS, INCLUDING BUT NOT LIMITED, TO RELIANCE BY YOU ON ANY INFORMATION OBTAINED FROM THE HOSTED APPLICATIONS OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR E-MAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO OUR RECORDS, PROGRAMS, OR SERVICES. YOU HEREBY ACKNOWLEDGE THAT THIS PARAGRAPH SHALL APPLY TO ALL CONTENT, DATA, AND INFORMATION SUBMITTED TO SUMMIT HOSTING OR TO THE HOSTED APPLICATIONS.
C. IF CUSTOMER IS A CALIFORNIA RESIDENT, CUSTOMER WAIVES CALIFORNIA CIVIL CODE §1542, WHICH SAYS: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. IF CUSTOMER IS A RESIDENT OF A STATE WITH PROTECTIONS SIMILAR TO CALIFORNIA CIVIL CODE §1542, CUSTOMER HEREBY WAIVES SUCH PROVISIONS OR PROTECTIONS.
D. This Section 13 shall survive any termination of this Agreement.14. CHANGES TO THIS AGREEMENT
A. We may revise and update this Agreement from time to time in our sole discretion. All changes are effective immediately when we post them to our website (available here), and apply to all access to and use of the Services thereafter (how changes to pricing are announced are set forth in Section 5.B). However, any changes to the dispute resolution provisions set forth below will not apply to any disputes for which the parties have actual notice on or prior to the date the change is posted on our Website. Your continued use of the Services following the posting of the revised Agreement means that you accept and agree to the revised Agreement. You are expected to check this website page each time you log into our Website to use our Services so you are aware of any changes, as they are binding on you.15. DISPUTE RESOLUTION; ARBITRATION
A. Mandatory Binding Arbitration. In the event of any dispute, claim, question or disagreement arising from or relating to this Agreement, or the relationship that results from this Agreement (a “Dispute”), the parties hereto shall use good faith efforts to settle the Dispute. To this effect, the parties shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. If the parties do not reach such solution within a period of thirty (30) days, then the parties agree that the Dispute shall be resolved by binding arbitration in Atlanta, Georgia, in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the “AAA”), subject to the limitations of this section. This agreement to arbitrate will be specifically enforceable under the prevailing law of any court having jurisdiction. Notice of a demand for arbitration shall be filed in writing with the other party hereto and with the AAA. In no event shall any such demand be made after the date when institution of legal or equitable proceedings based on such Dispute would be barred by the applicable statute of limitations. The parties agree that one (1) arbitrator shall arbitrate the Dispute. The arbitrator shall be selected by the joint agreement of the parties, but if they do not so agree within twenty (20) days after the date of the notice of a demand for arbitration referred to above, the selection shall be made pursuant to the Commercial Arbitration Rules of the AAA from the panels of business arbitrators maintained by the AAA. The decision of the arbitrator shall be made in writing, shall be final, judgment may be entered upon it in any court having jurisdiction thereof, and the decision shall not be subject to vacation, modification or appeal, except to the extent permitted by sections 10 and 11 of the Federal Arbitration Act, the terms of which sections the parties agree shall apply. Further, unless both you and we agree in writing otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The expenses of arbitration, including reasonable attorneys’ fees and the fees and expenses of the arbitrator, shall be shared equally by the parties.
B. The arbitrator will have no authority to award attorneys’ fees, punitive damages, or any other monetary relief not measured by the prevailing party’s actual damages and each party irrevocably waives any claim thereto. The award may include equitable relief. The arbitrator will not make any ruling, finding, or award that does not otherwise conform to this Agreement. The arbitrator may render a summary disposition relative to all or some of the issues, provided that the responding party has had an adequate opportunity to respond to any such application for such disposition.
C. The parties agree to treat all aspects of the arbitration as confidential, as provided in the AAA Rules. Before making any disclosure permitted by the AAA Rules, a party shall give written notice to the other party and afford such party a reasonable opportunity to protect its interests.
D. Class Action Waiver. Any proceedings to resolve or litigate any dispute in any forum, as permitted under this Agreement, will be conducted solely on an individual basis. Neither Customer nor Summit Hosting will seek to have any dispute heard as a class action or in any other proceeding in which either party acts or proposes to act in a representative capacity, and each party hereby waives any right to assert consolidated claims with respect to any disputes subject to arbitration under this Agreement or any disputes between the parties. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.16. ACCESS OR USE BY U.S. GOVERNMENT AGENCIES. Customer shall not contract with any agency of the U.S. government for access to or use of the Platform or the Services without the prior express written permission of Summit Hosting. The Summit Hosting Platform is a “commercial item” under FAR 12.201. Consistent with FAR section 12.212 and DFARS section 227.7202, any use, modification, reproduction, release, performance, display, disclosure of the Platform or Documentation by the U.S. government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted herein. 17. MISCELLANEOUS
A. Customer’ Agent’s Authority to Act. In addition to any transactions entered into by Customer or on Customer’s behalf, Customer also agrees to be bound by the terms of this Agreement for transactions entered into on Customer’s behalf by anyone acting or purporting to act as Customer’s agent, and transactions entered into by anyone who uses the account Customer has established with Summit Hosting, whether or not the transactions were made on Customer’s behalf.
B. Governing Law. Any disputes under this Agreement shall be resolved under the laws of the State of Georgia, USA, without reference to conflict of laws principles.
C. Venue and Jurisdiction. The state courts located in Fulton County, Georgia and the federal courts located in the Northern District of Georgia shall have exclusive jurisdiction and venue over any disputes arising under this Agreement, and neither Summit Hosting nor Customer shall seek to have any such dispute transferred from such venues to any other venues on the grounds of forum non convenience or otherwise. Customer acknowledges and agrees that Summit Hosting’s acceptance of any application made by Customer for Services provided by Summit Hosting and all Services are deemed to take place or be provided at the offices of Summit Hosting located in Alpharetta, Georgia USA.
D. Limitation of Time to File Claims. Any action, claim or dispute Customer may have against Summit Hosting must be brought (as permitted under this Agreement) within twelve (12) months of the claim arising, otherwise, such claim or action is permanently barred.
E. Notices. Customer agrees that Summit Hosting may provide Customer with notices, including those regarding changes to this Agreement, by email to the address listed in Customer’s profile. Unless expressly stated otherwise in this Agreement, all notices required to be given pursuant to this Agreement, other than notice of cancellation of this Agreement by Customer, shall be given in writing and delivered by email. All email notifications to Summit Hosting shall be sent to [email protected]. All email notifications to Customer shall be sent to the email address listed in Customer’s account profile. Notice of cancellation by Customer must be done by first notifying Summit Hosting and then completing and returning the Account Cancellation Form which will be sent to Customer. Each party will provide written notice to the other party in the event of a change in the contact information below. Notice shall be deemed given on the date sent by email, provided that verifiable, non-automated confirmation of delivery is maintained by the party sending such email.
F. Assignment. Customer may not assign, transfer, or convey this Agreement or any of its obligations hereunder, in whole or in part, without the prior written consent of Summit Hosting. Any assignment in violation hereof shall be of no power or effect. For the purposes of this Section 17.F the term “assign” and “assignment” includes, but is not limited to, assignment, transfer or conveyance, whether by agreement, merger, or by operation of law.
G. Entire Agreement. This Agreement and any documents expressly incorporated herein by reference sets forth the entire understanding and agreement between Customer and Summit Hosting regarding the subject matter of this Agreement and supersedes all prior or contemporaneous proposals or communications, oral or written, between the parties relating to the subject matter of this Agreement. The terms of this Agreement shall govern and prevail in the event of a conflict with any purchase orders or order forms of Customer.
H. Waiver. No waiver of any right under this Agreement shall be deemed effective unless contained in writing signed by a duly authorized representative of the party against which the waiver is sought to be enforced, and no waiver of any past or present right arising from any breach or failure to perform shall be deemed to be a waiver of any future right arising under this Agreement.
I. Severability. If any provision in this Agreement is invalid or unenforceable, that provision shall be construed, limited, modified or, if necessary, severed, to the extent necessary, to eliminate its invalidity or unenforceability, and the other provisions of this Agreement shall remain in full force and effect.
J. Relationship of the Parties. Nothing in this Agreement is intended or will be construed to create or establish any agency, partnership or joint venture relationship between the parties. The parties expressly disclaim such relationship, agree that they are acting solely as independent contractors hereunder, and agree that the parties have no fiduciary duty to one another or any other special or implied duties that are not expressly stated herein. Summit Hosting has no authority to act as agent for, or to incur any obligations on behalf of or in the name of, Customer.
K. Use of Customer’s Name. Summit Hosting may list Customer’s name as a customer of Summit Hosting in publically available documents and on its website.