IMPORTANT: 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 0 OF THIS AGREEMENT FOR MORE INFORMATION.
TERM
This Agreement shall commence on the Effective Date and shall continue for the Initial Term set forth in the Order Form and shall automatically renew for additional twelve (12) month periods (each a “Renewal Term”, and, together with the Initial Term referred to as the “Term”) unless terminated pursuant to this Agreement.
DESCRIPTION OF SERVICES
- Subject to Customer’s continued compliance with this Agreement, Summit Hosting agrees to provide the services purchased by Customer as set forth on our Website, and any Professional Services as further described in the applicable scope of work document agreed upon by the parties (“Scope of Work” or “SOW”) (collectively, the “Services”). The following in this Section 0 apply depending on which Services are purchased.
- Desktop-as-a-Service (“DaaS”) Services.
- For Summit Hosting’s DaaS Services, Summit Hosting, as of the Effective Date: (i) will host the third-party software applications as set forth on the Order Form (“Hosted Applications”), (ii) grants to Customer the right to access the Hosted Applications, and (iii) will provide dedicated application-level access thereto to Customer (“Hosted Services”). The Hosted Applications will be installed on Summit Hosting’s (or its service providers’) servers (“Server(s)”) and accessed via a server area designated for Customer. 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.
- License of Server Content. Customer agrees to and does hereby grant to Summit Hosting a nonexclusive, perpetual (but as expressly limited herein), royalty-free, transferrable, and sublicensable right and license to access, use, store, transmit, copy, display, retain, transfer, and modify Customer Data (as defined in Section 0) solely in conjunction with Summit Hosting’s performance of the Hosted Services and solely internally for the purposes of correcting, training, improving, and developing its services (unless expressly prohibited by applicable law).
- Authorized Access.
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 of its personnel 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).
The safety and security of your information also depends on you. Customer’s Authorized Users should maintain good internet security practices. Authorized Users are responsible for keeping this password confidential. Authorized Users should not share their password with anyone. Authorized Users must prevent unauthorized access to an Authorized 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 the Authorized User has finished accessing the account. If an Authorized User’s email or other account is compromised this could allow access to the account with us if Authorized User has given up those details and/or permitted access through those accounts. If an Authorized 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 an Authorized User suspects that account information has been compromised, the Authorized User should immediately change the account login credentials, and in particular make sure any compromised account does not allow access to Customer’s account. The information Authorized Users share in public areas may be viewed by others. Summit Hosting will never email an Authorized User to ask for a password or other account login information. If an Authorized User receives an email with such a request, please send it to Summit Hosting so we can investigate.
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 and service providers (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 (other than Summit Hosting) to maintain the security of Customer’s email or other account information which results in unauthorized access by a third party to such account and any actions which may have an adverse effect on Customer or Summit Hosting, such as, but not limited to, the transfer of funds by Summit Hosting in reliance of instructions purporting to originate from Customer.
- Customer Data Backups.
Summit Hosting shall back up all Customer Data stored in the Server 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 on Summit Hosting’s computers, systems, and networks, and, Summit Hosting shall verify the effectiveness of such backups at least on a calendar monthly basis. Active daily data backups are retained for not less than fifteen (15) days, and, if part of the Services for which Customer has selected, archival backups are retained for up to six (6) months. Customer agrees that the backup service may be unavailable or inaccessible during Downtime (as defined herein). 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.
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 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, except to the extent due to Summit Hosting’s negligence.
- Information Shared with Service Providers. Summit Hosting may disclose Customer Data to Summit Hosting’s affiliates, subsidiaries, parents, service providers and subcontractors, but only as may be required to provide the Services and all such entities shall be under written obligations of confidentiality to maintain Customer Data as confidential.
- 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 by Customer, including, but not limited to, intellectual property infringement, publicity and privacy rights violation, security issues, and the like, to the fullest extent of the law. Summit Hosting may involve and will cooperate with law enforcement authorities in investigating and prosecuting suspected violations of the law. Customer understands and agrees that Summit Hosting may disclose information regarding Customer or Customer’s Authorized 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) comply with 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 itself 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, other customers, or others.
- Limit of Connectivity Support
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.
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.
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.
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.
Private Cloud Service
Summit Hosting will provide Customer with the private cloud services set forth in the Order Form according to the terms and conditions set forth in the Private Cloud Service Agreement, available here and which may be amended from time to time in Summit Hosting’s sole discretion and effective on the data posted, and which is incorporated herein by reference. This Private Cloud service includes establishing and maintaining a dedicated server to which Customer will have access to store Customer Data. All data will be stored in an off-site location with 24/7 intrusion monitoring. The server is protected by enhanced encryption and security-related certificates, as well as by multi-factor authentication and network segmentation.
License to Summit Hosting. Customer hereby grants to Summit Hosting a nonexclusive, royalty-free, worldwide right and license during the Agreement to do the following to the extent necessary in the performance of the Services:
digitize, convert, install, upload, select, order, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit, distribute, publish, publicly display, publicly perform and hyperlink the Customer Data;
make archival or back-up copies of the Customer Data (although Summit Hosting is not required to do so; Customer is solely responsible for backing-up any Customer Data unless agreed to otherwise in a Scope of Work); and,
except for the rights expressly granted above, Summit Hosting is not acquiring any right, title or interest in or to the Customer Data, all of which shall remain solely with Customer.
Restrictions on Use. Customer agrees it will not do any of the following using Summit Hosting’s Services, resources, servers, or the like:
Engage in any illegal activities, including but not limited to hacking, phishing, and distributing malware;
Store or transmit data in violation of applicable law, regulation or legal obligation;
Engage in activities related to or comprising crypto-mining;
To launch a “denial of service”, phishing, or other attack;
To send communications which would reasonably be considered spam; or,
Use Summit Hosting’s servers to make or receive payments which are illegal under applicable law.
Co-Location Service
Summit Hosting will provide its co-location service according to the terms and conditions set forth in the Summit Hosting Co-Location Service Agreement, available here and which may be amended from time to time in Summit Hosting’s sole discretion and effective on the data posted, and which is incorporated herein by reference.
Hybrid Cloud Service
Summit Hosting will provide its hybrid cloud service according to the terms and conditions set forth in the Summit Hosting Hybrid Cloud Service Agreement, available here and which may be amended from time to time in Summit Hosting’s sole discretion and effective on the data posted, and which is incorporated herein by reference.
Professional Services
Summit hosting will provide the Professional Services set forth in the applicable Order Form and Statement of Work, both of which are incorporated herein by reference.
CONFIDENTIALITY OF CUSTOMER DATA
“Customer Data” means all data and information of Customer provided to, or collected, processed, or stored by Summit Hosting or its service providers in connection with the Hosted Applications or other Services pursuant to this Agreement, But excludes 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.).
Confidentiality of Customer Data. Customer retains ownership of all Customer Data received by Summit Hosting. Summit Hosting acknowledges that Customer Data is or may be or include information confidential and/or proprietary to Customer. Summit Hosting agrees not to disclose Customer Data to any third party, other than its personnel, service providers, and contractors, 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 prohibited by law or by request of law enforcement. 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 Data containing 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 0. If such protective order or other remedy is not obtained, or compliance with the provisions of this Section 0 is waived, Summit Hosting shall disclose only the minimum amount of Customer proprietary information that is legally required. Summit Hosting shall not be liable for any disclosures made in compliance with this Section 0.
DATA SECURITY
Summit Hosting shall maintain a comprehensive, written information security program, in compliance with applicable laws, regulations, and industry standards, and use technical, operational, and logical measures that are commercially reasonable in the hosted software industry which are designed to: (i) preserve and protect the security, availability, integrity, and confidentiality of Customer Data; (ii) protect Customer Data against unauthorized access, disclosure, use, loss, destruction, or alteration; and (iii) ensure timely and secure backup and restoration of Customer Data in the event of any failure or loss. Summit Hosting’s information security program shall include, but not be limited to, the following measures:
Encryption: Summit Hosting shall use industry-standard encryption technologies, including but not limited to Secure Sockets Layer (SSL) and Advanced Encryption Standard (AES), for the transmission of Customer Data.
Access Controls: Summit Hosting shall implement role-based access controls, make available multi-factor authentication, and periodic access reviews to restrict unauthorized access to Customer Data and to ensure that only personnel with a legitimate business need are granted access to Customer Data.
Security Monitoring: Summit Hosting shall continuously monitor its systems and networks for security incidents, vulnerabilities, and anomalies using intrusion detection systems, security information and event management (SIEM) tools, and other appropriate technologies.
Vulnerability Management: Summit Hosting shall conduct regular vulnerability assessments and penetration tests of its infrastructure and shall promptly remediate any identified vulnerabilities or security weaknesses in accordance with industry best practices. Additionally, Summit Hosting shall monitor client environment software for critical vulnerabilities and supply guidance for remediation on a case-by-case basis. It is the customer’s responsibility to act on discovered vulnerabilities.
Security Training: Summit Hosting shall provide regular security awareness training to its personnel to ensure that they are knowledgeable about current security threats, risks, and best practices.
Incident Response: Summit Hosting shall maintain a formal incident response plan to address and manage any security incidents, breaches, or suspected breaches in a timely and effective manner. Summit Hosting shall promptly notify Customer of any security incident affecting Customer Data, in accordance with applicable laws and regulations.
Disaster Recovery and Business Continuity: Summit Hosting maintains a written disaster recovery and business continuity plan that is designed to minimize service disruptions, ensure the availability and integrity of Customer Data, and facilitate the prompt resumption of services in the event of a disaster, system failure, or other unforeseen events. This plan shall include, but not be limited to, the following components:
Redundancy: Summit Hosting shall maintain geographically diverse, redundant data centers and infrastructure to support the continuous availability of services and to enable rapid recovery of Customer Data in the event of a disaster or system failure.
Backup and Restoration: Summit Hosting shall implement regular, secure, and encrypted backups of Customer Data to offsite storage facilities. Summit Hosting shall also maintain procedures and capabilities for the timely and secure restoration of Customer Data in the event of any data loss, corruption, or failure.
Testing and Review: Summit Hosting shall periodically test and review the effectiveness of its disaster recovery and business continuity plan, and shall update the plan as necessary to address new risks, technologies, or changes to its services and infrastructure.
Notification: In the event of a disaster or system failure affecting Customer Data or the availability of services, Summit Hosting shall promptly notify Customer and provide updates on the status of recovery efforts and estimated time to restore services.
SERVICE AVAILABILITY
Server Availability. Summit Hosting is committed to providing quality service to all Customers. Summit Hosting will use commercially reasonable efforts to have the its servers and/or the Service (as applicable) available 24 hours per day, 7 days per week, excluding (i) Scheduled Maintenance, (ii) Unscheduled Maintenance, (iii) Force Majeure Events (the foregoing terms are defined below), (iv) an outage lasting less than five minutes, or (v) unauthorized access, use, or misuse of the Service by Customer or anyone using any of Customer’s Authorized User’s login credentials ((i)-(v)) are collectively referred to as “Downtime”). Summit Hosting’s goal is to maintain a monthly average Availability of at least 99% (unless expressly stated otherwise in an Order Form or statement of work). 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.
Maintenance and Downtime.
Scheduled Maintenance. To ensure optimal performance of the Servers, Summit Hosting performs Scheduled Maintenance on the Servers on a routine basis, which may also include updating, upgrading, or modifying the Service, servers, networks, or other systems, hardware, and/or software. 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. Normal Scheduled Maintenance is during off-peak hours (12 a.m. – 6 a.m., Eastern US time).. Maintenance times noted above are approximate and Summit Hosting reserves the right to change such times. If maintenance standard times are changed, we will notify you.
Unscheduled Maintenance. Unscheduled Maintenance is maintenance not previously planned which is needed to resolve unanticipated issues that are critical for customers and/or availability or performance of the Services. Summit Hosting will notify Customers when possible via email prior to Unscheduled Maintenance. When and where practicable, Unscheduled Maintenance will be conducted between 9:00 p.m. and 3:00 a.m., Eastern US time.
Force Majeure Events. 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.
Performance Credits. For Customers who purchase an Initial Term of at least twelve (12) months, Summit Hosting provides performance credits set forth below.
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 a 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 Server Availability Goal was not met:
| “Server Availability Goal” | %of Monthly Fee Credited |
| 98.0% – 98.9% | 5% |
| 95.0% – 97.9% | 10% |
| 90.0% – 94.9% | 20% |
| 89.9% or below | 2.5% credited for every 1% of lost availability below 90.0% |
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 maintained by Summit Hosting. A credit is issued if the unavailability warranting the credit is confirmed. NOTWITHSTANDING ANYTHING IN THIS SECTION 0 OR ELSEWHERE IN THIS AGREEMENT TO THE CONTRARY, THE TOTAL CREDIT TO CUSTOMER FOR ANY SERVICE SHALL NOT EXCEED 50% OF THE MONTHLY FEES (OR, IF THE PAYMENT TERM FOR THE EFFECTED SERVICE IS ON AN ANNUAL BASIS, 1/12 OF THE ANNUAL FEE) 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.
PRICING AND PAYMENT
Pricing. Pricing for the Services is as set forth on the applicable Website page or Order Form. Summit Hosting reserves the right at its sole discretion to modify pricing of the Services (other than Professional Services previously ordered) at any time and the revised pricing will appear on Summit Hosting’s Website or invoice and, unless you terminate this Agreement or the relevant Service, Customer authorizes Summit Hosting to charge Customer’s existing payment method going forward for the new pricing. The amounts due will vary depending on which Services have been purchased.
Payment Terms. Prior to Service commencement, Summit Hosting requires a valid payment method (credit card or ACH) on account for pre-authorized auto-payment upon invoice issuance. Renewal invoices must be paid prior to the renewal deadline to prevent interruption in Service. For month-to-month Terms, monthly subscription access fees are invoiced in advance and payment is due within fifteen (15) days of invoice. Failure to make timely payment or if Customer’s credit card is declined may result in Service deactivation or suspension and a potential increase in fees upon reactivation. Fees for Professional Services are invoiced electronically and payment is due as set forth in the applicable Order Form or SOW. Invoices and payments shall be in U.S. dollars for U.S. customers and Canadian dollars with applicable taxes for Canadian customers. Summit Hosting reserves the right, upon at least five (5) days’ prior written notice to Customer, to suspend access to the Services if payment is overdue.
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 process 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.
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 overdue balance 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 Services 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 0. If Customer’s Service is suspended due to lack of payment, Summit Hosting is not obligated to provide service access or data until account is paid in full. If Customer’s account is not brought current within thirty (30) days, Summit Hosting has the right to terminate this Agreement.
Audit of User Counts. Unless provided for otherwise on the Website, changes in user counts (where applicable) will result in an increase or decrease of fees. All user count changes are required to be processed through the Summit Hosting ticket system.
SUMMIT HOSTING’S REPRESENTATIONS AND WARRANTIES
Summit Hosting represents and warrants to Customer that it shall use commercially reasonable efforts designed to ensure that Customer’s use of the Services 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.
Summit Hosting represents and warrants to Customer that all Services shall be performed in a professional and workmanlike manner and that all deliverables for Professional Services will conform in all material aspects to the specifications set forth in the applicable SOW.
Summit Hosting represents and warrants to Customer that Customer’s use of the Services will not infringe any United States patent or copyright, when such Services are used according to Summit Hosting’s instructions.
Disclaimers. OTHER THAN AS EXPRESSED IN THIS SECTION 0, THE 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 SUMMIT HOSTING EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, AND UNINTERRUPTED, ERROR-FREE USE.
CUSTOMER’S REPRESENTATIONS AND WARRANTIES
No Intellectual Property Violations. Customer represents and warrants to Summit Hosting that Customer Data shall not contain any content, including all 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 obtained valid enforceable consent from the owner thereof to transmit, store, copy, use and display Customer Data on and within Customer’s server account and that Summit Hosting has the right to transmit, store, process, disclose, retain, and transfer Customer Data as permitted under this Agreement. Customer also represents and warrants the Customer Data being hosted by Summit Hosting shall not be used in connection with any illegal activity.
No Malware. Customer shall use commercially reasonable efforts to prevent any Malware to be uploaded to Summit Hosting’s servers or to any DaaS Applications. “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.
TERMINATION
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.
Summit Hosting may terminate this Agreement immediately, without the opportunity to cure under Section 0, by providing written notice to Customer (i) if Customer’s use of the Services is abusive or unnecessarily or illegally harasses Summit Hosting or third parties, or (ii) if Summit Hosting reasonably determines that Customer’s activities may defame, embarrass, harm, abuse, threaten, slander, libel, or harass third parties, or (iii) for activities prohibited by applicable law, or (iv) for Customer’s practices which encourage unlawful behavior by others.
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 Services, and shall immediately cease use thereof. Termination by either party will not relieve Customer of any obligation to pay fees due prior to termination, and all fees due for the remainder of the applicable Term for each Service will immediately be due, and Summit Hosting may charge the payment method being used by Customer up to that point. There will be no refund of pre-paid fees.
Application Transition Services. If requested by Customer within thirty (30) days of the effective date of termination, and if Customer has no outstanding invoices, Summit Hosting will assist Customer for up to thirty (30) days (unless agreed to otherwise in writing by the parties) in the transfer of Customer’s applications, and Customer agrees to pay Summit Hosting (in advance based on an estimate) for such assistance at Summit Hosting’s then-current hourly rates. 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.
Data Transition. If Customer terminates the Agreement for cause, Summit Hosting will, upon Customer’s request within thirty (30) days of the effective date of termination, provide a copy of all Customer Data then-stored by Summit Hosting
Equipment Removal. If Customer has any Customer-owned or leased equipment located at Summit Hosting’s data center, upon termination of the Agreement Customer shall remove all such equipment from Summit Hosting’s data center and return any space allocated to Customer back in the same condition it was on the commencement date of co-location services. If Customer does not remove such equipment within thirty (30) days of the Agreement termination date, Summit Hosting may remove Customer’s equipment and store it, at Customer’s expense and risk. If Customer does not collect such equipment within such thirty (30) days, Summit Hosting may retain and reuse the equipment, or liquidate the equipment in any reasonable manner (but securely deleting any Customer Data therefrom) and retain any proceeds.
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 as compensation for collections efforts.
SUSPENSION OF SERVICE
Summit Hosting may, without notice (other than as expressly stated in this Section 10.A) suspend or restrict access to the Service or providing a Service, in whole or in part, where Summit Hosting has the right to terminate, or if: (a) Summit Hosting reasonably believes that Customer or an End User has materially violated a material term of this Agreement or any applicable law; (b) Summit Hosting reasonably believes that it is necessary to protect the servers, systems, infrastructure, data, or information of Summit Hosting or its third-party providers or customers, from a denial of service attack, security breach, or similar event; (c) any service provided by Summit Hosting’s service provider that is material to the provision of the Service becomes unavailable to Summit Hosting for any reason, and Summit Hosting cannot procure an alternative in a timely manner or on commercially reasonable terms; (d) fees are not paid when due; (e) requested by a law enforcement agency, government agency, or similar authority; or, (f) Customer fails to cooperate with Summit Hosting to investigate suspected violations of this Agreement; or. For the grounds stated in this Section 10.A.(c)-(f), Summit Hosting will provide at least five (5) days’ prior written notice for any such suspension (unless requested or required otherwise by an authority). Summit Hosting shall reasonably tailor the scope and duration of a suspension or restriction pursuant to this Section 10.A to the applicable circumstances which gave rise to such suspension or restriction. Where practicable, Summit Hosting will provide updates on suspension due to Section 10.A.(b), (c), or (e). Upon removal, cessation or mitigation of the underlying cause for any of the above that occurs, Summit Hosting will resume providing or providing access to the affected Services (unless this Agreement has been terminated).
INDEMNIFICATION
- Summit Hosting shall indemnify, defend, and hold harmless Customer and its officers, directors, employees, agents, and affiliates from and against any and all third-party claims, actions, or causes of action (“Claims”) for any liabilities, damages, penalties, fines, assessments, costs, and expenses, including reasonable attorneys’ fees and costs (collectively, “Losses”) arising or related to (a) an allegation by a third party alleging that the Services infringes any United States patent, and/or any copyright, trade secret or other property right held by a third party; (b) any failure by Summit Hosting or its employees, agents, service providers, or subcontractors to materially comply with applicable law or regulation; or, (c) damage to or loss of real or tangible property, or personal injury, resulting from the gross negligence or willful misconduct of Summit Hosting. The above shall apply provided that Summit Hosting is notified promptly by Customer of any such Claim (including any threatened claim) and Summit Hosting shall have sole control of the defense with respect to same (including without limitation, the negotiations and settlement of such claim). If a Claim pursuant to clause (a) has occurred or, in Summit Hosting’s opinion, is likely to occur, Summit Hosting shall, at Summit Hosting’s option and expense, (i) procure the right to continue providing the Services or the Summit Hosting Platform, (ii) re-perform or replace the potentially infringing portion of the Services or the Summit Hosting Platform, or (iii) modify the Services or the Summit Hosting Platform so that infringement is avoided. If, after using commercially reasonable efforts, none of the foregoing three alternatives is reasonably available, Summit Hosting may terminate this Agreement, and Customer shall be entitled to a pro-rated refund of pre-paid but unearned fees. Summit Hosting shall have no such indemnification obligation to the extent such infringement under clause (a) above: (w) relates to use of the Services or the Summit Hosting Platform or any Deliverable in combination with other software, data products, processes, or materials not provided by Summit Hosting and the infringement would not have occurred but for such combination; (x) arises from or relates to modifications to the Services not made by Summit Hosting; (y) relates to Customer Data or any third-party product or service, or (z) where Customer continues the activity or use constituting or contributing to the infringement after notification thereof by Summit Hosting.
- 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 for Losses 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 0 shall survive the termination of this Agreement with respect to any Losses occurring before such termination.
- As an express condition to the indemnifying party’s obligation under this Section 0, the party seeking indemnification must: (a) promptly notify the indemnifying party in writing of the applicable Claim for which indemnification is sought (except that any delay on the part of the indemnified party in providing such notice shall not relieve the indemnifying party of its indemnification obligation except to the extent the it is prejudiced thereby); and (b) provide the indemnifying party with all reasonable non-monetary assistance, information and authority reasonably required for the defense and settlement of such Claim. No settlement or compromise that imposes any liability or obligation on the indemnified party will be made without the indemnified party’s prior written consent, which consent shall not be unreasonably withheld, delayed, or conditioned.
- This Section 0 shall survive the termination of this Agreement with respect to any Losses occurring before such termination.
LIMITATION OF LIABILITY
EXCEPT FOR INTELLECTUAL PROPERTY INFRINGEMENT, BREACH OF CONFIDENTIALITY, AND INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL SUMMIT HOSTING’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS PAID BY CUSTOMER UNDER THE ORDER FORM FOR THE SPECIFIC SERVICES FOR WHICH LIABILITY IS CLAIMED IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.
Exclusion of Consequential Damages. EXCEPT FOR INTELLECTUAL PROPERTY INFRINGEMENT, BREACH OF CONFIDENTIALITY, AND INDEMNIFICATION OBLIGATIONS, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE PARTIES EXPRESSLY AGREE THAT IN NO EVENT SHALL SUMMIT HOSTING OR ITS AFFILIATES HAVE ANY LIABILITY TO CUSTOMER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND OR NATURE HOWEVER CAUSED, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, SUBSTITUTE GOODS OR SERVICES, WORK STOPPAGE, DATA LOSS, LOST PROFIT OR COMPUTER FAILURE, WHETHER UNDER CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
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:
ANY ACTION CUSTOMER TAKES BASED ON THE INFORMATION CUSTOMER RECEIVES IN THROUGH OR FROM THE SERVICES;
CUSTOMER’S FAILURE TO KEEP PASSWORDS OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL;
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;
THE IMPROPER AUTHORIZATION FOR THE SERVICES BY SOMEONE CLAIMING SUCH AUTHORITY; OR,
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.
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 DAAS SERVICES, 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.
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.
This Section 0 shall survive any termination of this Agreement.
DISPUTE RESOLUTION; ARBITRATION
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 the 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.
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.
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.
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.
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.
MISCELLANEOUS
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.
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.
Venue and Jurisdiction. Where litigation is permitted under this Agreement, 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.
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.
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 will 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.
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 0 the term “assign” and “assignment” includes, but is not limited to, assignment, transfer or conveyance, whether by agreement, merger, or by operation of law.
Entire Agreement. This Agreement, including all Order Forms, SOWs, and other documents expressly incorporated herein by reference set 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.
Changes to this Agreement. We may revise and update this Agreement from time to time in our sole discretion. All changes are effective as of January 2024 and apply to all access to and use of the Services thereafter. 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.
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.
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.
Use of Customer’s Name. Summit Hosting may list Customer’s name as a customer of Summit Hosting in publicly available documents and on its Website.
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.