⬅ Legal

Services Agreement

This agreement describes the terms of service between Summit and our customers.

Master Services Agreement

Last Updated: January 24, 2024

This Master Services Agreement, as amended from time to time and effective on the date posted on our website (“Agreement”), is made by and between Summit Hosting LLC (“Summit Hosting”, “we”, “us”, or “our”)  and the customer (“Customer”, “you” or “your”) identified in the order form (“Order Form”) submitted to us, and is effective as of the date you submit your purchase request on our summithosting.com website (“Website”) to us “(Effective Date”). The individual who has submitted an Order Form to us 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.

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

  1. 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.
  2. Desktop-as-a-Service (“DaaS”) Services.
    1. 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.
    2. 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.

  1. 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.

  1. 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.
  2. 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

  1. 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.
  2. 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.
  3. 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.
  4. 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.

Master Products and Services Agreement for Former Deft Customers

This Master Products and Services Agreement is by and between ServerCentral, LLC dba Deft.com (“Deft”), a Delaware company, and the individual or entity purchasing Products and/or Services from Deft (“Customer”), pursuant to one or more Orders. Deft and Customer may be collectively referred to as “Parties” or, individually, as “Party.”

Affiliate”– any Person that, directly or indirectly, controls, is controlled by, or is under common control with, a specified Person.

Agreement”– this Master Products and Services Agreement, together with all Orders and Supplements (as each such term is defined below).

Commencement Date”– the date upon which Deft provisions an ordered Product or Service, as set forth in the applicable Order.

Control,” “controls” and “controlled,” each as used in the definition of “Affiliate”– the possession, directly or indirectly, of fifty percent (50%) or more of the equity interests of another Person or the power otherwise to direct or cause the direction of the management and policies of such other Person, whether through ownership of voting securities, by contract, or otherwise.

Datacenter Facility” – a location where Deft maintains a presence for the physical housing of computer and/or network equipment.

Effective Date” – the date upon which this Agreement has been executed by both Deft and Customer.

Malicious Code” – any computer virus, Trojan horse, worm, time bomb, or other similar code or hardware component designed to disable, damage or disrupt the operation of, permit unauthorized access to, erase, destroy or modify any software, hardware, network or other technology.

Person”– an individual or a partnership, corporation, limited liability company, trust, joint venture, association, unincorporated organization, government agency or political subdivision thereof, or other entity.

Products” – the products ordered by Customer, as set forth in one or more Orders.

Recurring Charges”– any recurring (whether monthly recurring, quarterly recurring, etc.) charges set forth in an Order.

Deft Network” – collectively, the fiber optic network, system capacity and related facilities (including, without limitation, routers, switches and communication channels) owned or controlled by Deft.

Deft Website”– Deft’s website, published at https://www.summithq.com or such other URL as Deft may specify from time to time.

Service Level” or “SLA”– performance target for specific Services provided by Deft, as set forth in an applicable Supplement.

Services”– the services ordered by Customer, as set forth in one or more Orders.

Supplement”– Setting forth the description, terms and conditions and SLAs (if relevant) applicable to any Products and/or Services to be provided under this Agreement, which Supplement (i) is posted on the Deft Website and (ii) may be amended from time to time by Deft in its sole discretion; provided that Deft shall provide Customer notice via e-mail of any such amendment Deft reasonably believes will substantially affect use by Customer of applicable Products and/or Services.

Support Ticketing System” – Deft’s system for tracking all support requests, and at Deft’s sole discretion, limited requests for purchasing Products or Services.

Term” – the period of time in which Deft provides Products and/or Services to Customer, as set forth in the applicable Order.

2.1 Orders

2.1.1 General

Any and all Products and Services to be provided by Deft under this Agreement shall be set forth in individual order forms (including sales order forms and orders placed via the Deft Website or Deft’s Support Ticketing System), each of which will: (i) describe the Products and/or Services to be provided thereunder and related subject matter, including the Fees (as defined in Section 4.1 below) to be charged therefor, the applicable Commencement Date and Term, and other relevant terms agreed upon by the Parties; and (ii) unless entered into by Customer via the Deft Website or Deft’s Support Ticketing System, be executed by authorized representatives of each Party (each such completed order, as executed by both Parties, or otherwise entered into by Customer via the Deft Website or Deft’s Support Ticketing System, an “Order”). Each Order is hereby incorporated into, and subject to, the terms of this Agreement.

2.1.2 Change Requests

Any change(s) to the nature or scope of any Products or Services to be provided under any Order must be agreed in an amended Order signed by authorized representatives of both Parties. Any such amended Order shall be incorporated into this Agreement and subject to the terms and conditions of the applicable Supplement(s).

2.1.3 Order Terms

The initial Term of each Order shall begin on the Commencement Date for the Products and/or Services ordered thereunder and shall remain in effect until the expiration of the initial Term specified in the Order. If the Order specifies a Term of longer than one (1) month, the Term of such Order will automatically renew for successive twelve (12) month terms unless either Party provides the other Party written notice of non-renewal at least ninety (90) days prior to the end of the then current initial Term or renewal Term. Notwithstanding the foregoing, if the Commencement Date of an Order occurs on a day other than the first day of a month, Customer shall be responsible for charges beginning on the Commencement Date and Deft will bill for the pro-rata portion of the month in which Service was provided, and the Term will then start on the first day of the subsequent month. By way of example, if an Order with a twelve (12) month Term has a Commencement Date of December 15, 2015, Customer shall be responsible for the pro-rata Recurring Charges beginning on December 15, 2015 to December 31, 2015, and the Term of the Order shall begin on January 1, 2016 and shall continue for a period of twelve (12) months from such date.

2.1.4 Monthly Terms

Each Order for a one (1) month Term shall automatically renew for consecutive one (1) month Terms, unless either Party provides the other Party at least thirty (30) days prior written notice of non- renewal.

2.1.5 Third Party Providers 

If Deft is required to procure from a third party any of the Products or Services listed on an Order, Customer hereby agrees that, unless otherwise expressly set forth on such Order or the applicable Supplement(s): (i) it shall be subject to, and shall comply with, any and all terms and conditions specified by such third party licensor, lessor or provider (“Third Party Provider”) as Deft may communicate to Customer from time to time or that are otherwise the subject of an agreement between Customer and such Third Party Provider (e.g., an end user license agreement pertaining to third party software provided by Deft); (ii) in the event of any conflict between such terms and conditions specific to the Products or Services provided by such Third Party Provider and those specific to Products and/or Services provided directly by Deft, the more restrictive terms and conditions shall control; and (iii) in conjunction with any cancellation by Customer of any Products or Services from a Third Party Provider, Customer will be responsible for all termination charges imposed upon Deft by such Third Party Provider and shall promptly reimburse Deft for such charges upon Deft invoicing Customer therefor.

2.1.6 Data Center Facilities

Without limiting any other obligations of Customer hereunder, Customer shall comply with any and all security and facility policies, rules and regulations of Deft and/or any Third Party Provider in connection with the use of any Data Center Facility.

2.2 Supplements

2.2.1 General

Each Supplement is hereby incorporated into, and subject to, the terms of this Agreement. Notwithstanding any provision to the contrary, no SLA for any Services is applicable during any trial period with respect to Customer’s use of such Services or during initial configuration or implementation of such Services.

2.2.2 Credits

In the event of a failure by Deft to meet any SLA, then subject to the terms and conditions of this Section 2.2 and the relevant Supplement, Deft shall issue to Customer a credit to be applied against future Fees payable by Customer in respect of the Services to which such SLA pertains (each, a “Credit”); provided that under no circumstances shall the aggregate Credits in respect of any one (1) calendar month issued under any individual Supplement exceed the lesser of (i) the total Fees payable for the Services to which the SLA(s) pertain(s) in such calendar month and (ii) such limitations set forth in such Supplement. In addition, Customer shall be entitled to only a single Credit should any one incident result in a failure of more than one SLA under any Supplement, even if such incident causes the failure of multiple SLAs under such Supplement. Credits are calculated after deduction of all discounts and other special pricing arrangements, and are not applied to Taxes (as defined below), surcharges or similar charges.

2.2.3 Credit Request

To receive a Credit under any Supplement, Customer must (i) notify Deft within five (5) business days from the time Customer becomes eligible to receive such Credit, and (ii) provide Deft any such information as Deft may request regarding the event Customer believes gives rise to the entitlement to such Credit. Customer shall forfeit its right to receive the Credit if it fails to comply with these requirements.

2.2.4 Remedy

UNLESS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, INCLUDING THE APPLICABLE ORDER OR SUPPLEMENT(S), WITH RESPECT TO ANY SPECIFIED SERVICES, ANY CREDITS AWARDED BY DEFT HEREUNDER SHALL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE BY DEFT TO MEET ANY SLA AND ANY OTHER FAILURE, UNAVAILABILITY, DEGRADATION OR NONPERFORMANCE OF ANY SERVICES, INCLUDING, TO THE EXTENT APPLICABLE, ANY OUTAGES OR NETWORK CONGESTION.

2.2.5 Exclusions

Customer shall not receive any Credit under any Supplement to the extent Deft’s failure to meet the applicable SLA is caused by or associated with any of the following, to the extent applicable, or such other exclusions as are set forth in such Supplement:

  1. a Force Majeure Event (as defined below);
  2. failure of local access circuits to the Deft Network, unless such failure is caused solely by Deft;
  3. the SLA was erringly deemed as not fulfilled due to an outage or error of any SLA measurement system;
  4. scheduled maintenance, emergency maintenance or necessary upgrades;
  5. failure, malfunction, degradation, or incorrect or unauthorized installation or operation of any equipment or other technology or services owned by Customer (or any of its End Users (as defined in Section 2.3 below)) or otherwise not provided by or on behalf of Deft;
  6. acts or omissions of Customer and/or its customers, agents, contractors and/or vendors, including negligence, willful misconduct and any breach of this Agreement; or
  7. modification, suspension or discontinuation of the relevant Services in accordance with the terms of this Agreement.

2.3 Scope of Use

Except as expressly set forth in this Agreement, (i) the Products and Services are provided only for Customer’s internal use, and only for the purposes set forth in this Agreement, and (ii) Customer may not market, sell, license, lease, provide or make available to a third party, or otherwise distribute, directly or indirectly, any Products or Services. In the event this Agreement permits Customer to make available any Products or Services to any third party (each, an “End User”), then Customer shall be responsible for each End User’s compliance with all applicable terms of this Agreement and, unless otherwise expressly set forth in this Agreement, Customer shall (a) require each such End User to enter into a written agreement no less protective of the rights of Deft and any applicable Third Party Providers than the terms set forth herein and in no event conflicting with any terms hereof (each, an “End User Agreement”), (b) enforce such End User’s compliance with the terms of such End User Agreement, (c) provide Deft notice of any violation of any End User Agreement that may adversely affect Deft or any Third Party Provider, or any of their respective rights hereunder, promptly after becoming aware of the same, (d) upon termination of any End User Agreement, ensure the End User has ceased use of all Products and/or Services, and (e) provide Deft written notice of any claim, damages, or cause of action brought against Customer by any End User, and/or any subpoena served upon Customer or any officer or employee thereof, which relates to any Products or Services or those portions of any End User Agreement relating to such Products and/or Services.

2.4 Suspension

Deft may suspend its provision to Customer of any or all Products and Services under this Agreement, and may deny access to, and remove, any Customer equipment or other Customer property at, any Datacenter Facility space provided to Customer hereunder, immediately upon notice to Customer (with e-mail notice to suffice) in the event: (i) Customer breaches the Acceptable Use Policy (as defined below) in any material respect and Deft determines in its reasonable discretion that there is potential harm to the Deft Network or any other technology, network or other property employed by Deft or other Deft customers; (ii) of repeated violations of the Acceptable Use Policy by Customer; (iii) Customer fails to cooperate with any inspection or audit as required under Section 3.10; (iv) Deft reasonably believes Customer has used or is using any Products or Services hereunder in any manner that violates any applicable laws or regulations; (v) Customer breaches any of its other material obligations under this Agreement and fails to cure such breach (a) within five (5) days following written notice thereof, if Customer has failed to pay any amounts due under this Agreement, or (b) within thirty (30) days following written notice of any other breaches; or (vi) Customer repudiates any of its obligations under this Agreement before fully performing such obligations. Deft, in its reasonable discretion, may re-enable the affected provision of Products or Services upon its satisfaction that all violations have ceased and with adequate assurance that such violations will not occur in the future. In addition, Deft may modify or suspend the provision of any Products or Services hereunder, if, in Deft’s reasonable discretion, such modification or suspension is necessary or advisable to (a) comply with any applicable law or regulation or a request of any governmental or law enforcement authority, (b) preserve the security of the relevant Products or Services, (c) avoid or mitigate an imminent risk of harm or any other situation that may compromise the ability of Deft to deliver any Products or Services, in accordance with the terms of this Agreement, to Customer or any other Deft customers, or (d) eliminate a hazardous condition, and Dedft shall provide Customer notice of any such modification or suspension when, and to the extent, reasonably practicable.

2.5 Security

Deft shall use commercially reasonable efforts to employ measures it deems appropriate to endeavor to mitigate security risks with respect to its Products and Services, but does not guarantee that any Products or Services, or the use thereof, or any Customer Data (as defined in Section 3.4.1 below) disseminated or otherwise used in connection therewith, will be secure.

3.1 Access Methods

Deft shall use commercially reasonable efforts to employ measures it deems appropriate to endeavor to mitigate security risks with respect to its Products and Services, but does not guarantee that any Products or Services, or the use thereof, or any Customer Data (as defined in Section 3.4.1 below) disseminated or otherwise used in connection therewith, will be secure.

3.2 Acceptable Use

In the event Deft provides Customer any Services hereunder, Customer shall at all times comply with and conform its use of the Services to Deft’s requirements for acceptable use of Deft;s Services, as set forth on the Deft Website, as such requirements may be amended by Deft from time to time (“Acceptable Use Policy”).

3.3 Products

3.3.1 Acceptable Use

Unless otherwise specified in the applicable Order, Customer shall have the right to use any Products provided by Deft under this Agreement (excluding any Purchased Hardware, as addressed in Section 3.4 below), solely during the Term of the applicable Order, provided that all Fees owed in respect thereof are paid when due.

3.3.2 Deft Equipment

Unless otherwise specified in the applicable Order, Customer agrees: (i) to use any Products comprising hardware or other equipment (excluding any Purchased Hardware, as addressed in Section 3.4 below, “Deft Equipment”) only in conformance with the applicable manufacturer’s recommendations; and (ii) not to, and not to permit any other Person to, without the prior written consent of Deft, (a) repossess or disable such Deft Equipment, (b) create any lien or encumbrance on such Deft Equipment, or (c) interfere or tamper with, alter, amend or modify the Deft Equipment or any serial numbers, identity parts, or other similar designations on the Deft Equipment. Without limiting the generality of any other obligation of Customer under this Agreement, Customer shall promptly reimburse Deft for any and all fees, costs and expenses incurred by Deft in connection with Customer’s violation of any portion of this Section 3.3.2.

3.3.3 Software

Unless otherwise set forth in the applicable Order, with respect to all Products comprising software (“Software”), Customer agrees not to and not to permit any other Person to, without the prior written consent of Deft: (i) copy, modify, duplicate, decompile, reverse engineer, disassemble or otherwise reduce to a humanly perceivable form, make any attempt to discover the source code of, create derivative works based on, or translate the Software; (ii) remove, obscure or alter in any manner any trademarks, trade names, copyright notices or other proprietary or confidentiality notices or designations, of any Person, contained or displayed in or on the Software; or (iii) without the consent of Deft, upgrade from one version of Software to another. Unless otherwise set forth in any Order or Supplement, any license to any Software hereunder shall be revocable, non- exclusive, non-transferable (except as set forth herein) and non-sublicenseable, and shall be only for the object code (and not the source code) of such Software. Without limiting the generality of any other obligations of Customer under this Agreement, Customer shall promptly reimburse Deft for any and all fees, costs and expenses incurred by Deft in connection with Customer’s violation of any portion of this Section 3.3.3.

3.3.4 Maintenance

Except as set forth in any applicable Order or Supplement, Deft shall have no obligation to provide modifications, upgrades, updates, enhancements, bug fixes, new versions or replacements (collectively, “Updates”) to or of any Products or to otherwise maintain or support any Products. Should Deft provide any Updates, any and all such Updates shall be deemed “Products” under this Agreement and subject to the terms and conditions hereof.

3.4 Purchased Hardware

Unless otherwise set forth in the applicable Order, Deft will use commercially reasonable efforts to provide Customer any hardware or other equipment made available by Deft and ordered by Customer to be purchased under this Agreement (“Purchased Hardware”), pursuant to the terms and conditions of this Agreement. Customer’s purchase of Purchased Hardware from Deft via an Order or request for parts shall be governed by the following terms and conditions:

  1. Unless specified in the applicable Order, pricing for all Purchased Hardware shall be at Deft’s then-current list price therefor.
  2. Customer is responsible for any applicable sales tax in conjunction with the Purchased Hardware.
  3. In jurisdictions where Deft collects sales tax, Deft shall charge Customer the applicable tax unless a valid certificate of exemption is presented.
  4. Deft warrants Purchased Hardware shall be free from defects for a period of thirty (30) days from the date of delivery to Customer (the “Deft Hardware Warranty Period”). NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IN CONJUNCTION WITH DEFECTIVE PURCHASED HARDW ARE REPORTED DURING THE DEFT HARDWARE WARRANTY PERIOD SHALL BE TO OBTAIN REPLACEMENT PURCHASED HARDWARE (IF AVAILABLE) OR TO REFUND TO CUSTOMER THE AMOUNTS PAID TO Deft FOR SUCH PURCHASED HARDWARE, AT DEFT’S REASONABLE DISCRETION.
  5. Upon expiration of the Deft Hardware Warranty Period, Customer’s sole and exclusive remedy for defective Purchased Hardware is to pursue a warranty claim with the original Purchased Hardware manufacturer or reseller (each an “OEM”). Deft agrees to transfer ownership of the Purchased Hardware to Customer and reasonably assist Customer with documentation for OEM warranty claims.
  6. Customer acknowledges that in cases where the Purchased Hardware is from Deft’s stock, the OEM’s warranty commencement date will be the date the Purchased Hardware was purchased by Deft, which may result in a shorter warranty period than the OEM would provide to Customer if purchased at retail.
  7. Purchased Hardware may not be returned to Deft for any reason except in the event (i) a material defect of the Purchased Hardware is reported within the Deft Hardware Warranty Period and (ii) Deft is unable to provide the identical product or a reasonably equivalent product that is satisfactory to Customer.
  8. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, DEFT’S TOTAL LIABILITY IN CONJUNCTION WITH PURCHASED HARDWARE PROVIDED BY DEFT SHALL BE LIMITED TO THE REPLACEMENT OF, OR REFUND OF THE AMOUNT PAID FOR, ANY DEFECTIVE HARDW ARE DURING THE DEFT HARDWARE WARRANTY PERIOD, AT DEFT’S REASONABLE DISCRETION.
  9. The failure of, or otherwise defective, Purchased Hardware shall not cause Customer to become eligible for any Credits for any resulting Downtime or other outage or failure.

3.5 Customer Data

3.5.1 General

As between Deft and Customer, Customer shall own, and shall be and remain wholly responsible for, all data, information and other content used, generated, uploaded, stored and/or transmitted in connection with any Products or Services (“Customer Data”), including ensuring Customer has a valid right to use such Customer Data, ensuring the integrity and security of such Customer Data, backing up and retaining archival copies of all such Customer Data, restoring Customer Data in the event of any loss or impairment thereof, and ensuring such Customer Data complies with all applicable laws and regulations relating thereto (including those related to protection of Customer Data comprising personally identifiable information, the encryption of such Customer Data or the destruction thereof in connection with decommissioned hardware, as applicable). Customer represents and warrants that under no circumstances shall any Customer Data infringe, misappropriate, or otherwise violate any intellectual property, publicity, privacy or other proprietary rights of any Person.

3.5.2 PHI

Without limiting the generality of the foregoing, Customer (i) acknowledges that not all of Deft’s Products and Services are designed to comply with the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) security standards, (ii) shall not,  without the prior written consent of Deft and execution of Deft’s HIPAA Addendum to Master Products and Services Agreement, use any Products or Services to create, maintain, receive, transmit, transport, process or store any protected health information, as defined in 45 C.F.R. §164.501, as may be amended or superseded (“PHI”), and (iii) shall use only those Products and/or Services that have been designated by Deft as “HIPAA Compliant” to create, maintain, receive, transport or store any PHI hereunder.

3.5.3 Cardholder Data

Customer is responsible for ensuring that its use of any Product and/or Service to store or process credit card data complies with applicable Payment Card Industry Data Security Standards (“PCI DSS”) requirements.

3.6 Use of Deft IP Addresses

Any IP Addresses assigned to Customer by Deft remain the sole property of Deft, and may be used only in connection with and for the duration of the Services purchased. In the event Customer discontinues the use of the Services to which such IP Addresses pertain for any reason, or the applicable Order terminates for any reason, Customer’s right to use the IP Addresses shall automatically terminate.

3.7 Customer Insurance

Customer shall have, and maintain at its own expense throughout the term of this Agreement and for two (2) years following the effective date of expiration or termination hereof, insurance coverage acceptable to Deft, which shall at a minimum include any such insurance as required pursuant to the specific Supplement(s) governing the Products and/or Services provided to Customer under this Agreement (“Required Insurance”). The categories of potential Required Insurance are as follows:

Category A: An “All-Risk Insurance Policy” on personal property of Customer at limits of liability to represent the replacement cost of Customer’s personal property situated at each Datacenter Facility;

Category B: “Comprehensive General Liability Policy,” including products and completed operations insurance, personal injury insurance, and blanket contractual liability insurance on an occurrence basis, with limits of liability of no less than One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) in the aggregate, with a maximum Twenty-Five Thousand Dollars ($25,000) deductible or self-insured retention. The Comprehensive General Liability Policy must include a Primary and Noncontributory Endorsement in favor of Deft;

Category C: A “Cyber Liability Policy” to provide direct damage insurance and liability insurance to Customer arising out of Customer’s operations, with a limit of not less than One Million Dollars ($1,000,000) per claim and with a maximum Twenty-Five Thousand Dollars ($25,000) deductible or self- insured retention;

Category D: “Workers’ Compensation Policy,” complying with all statutory minimums for those state(s) in which the Services are performed; and

Category E: “Umbrella or Excess Liability Policy,” with a combined single limit of no less than Two Million Dollars ($2,000,000) per claim and in the aggregate over and above the primary Comprehensive General Liability policy, and primary automobile policy and the Employer Liability section of the Worker’s Compensation policy.

Furthermore, notwithstanding any insurance requirements set forth in the applicable Supplement(s), in the event Customer utilizes any Products and/or Services to create, maintain, receive, transmit, transport, process, store, or otherwise utilize either PHI or credit card data, Customer shall have and maintain, in accordance with all applicable terms and conditions hereof, all categories of Required Insurance set forth above.

With respect to each item of Required Insurance, Customer shall name Deft and any applicable Datacenter Facility provider as additional insureds, and each certificate of insurance therefor shall provide that (A) the insurer waives any and all rights of subrogation against Deft, and (B) the insurer will provide written notice to both Customer and Deft at least thirty (30) days prior to any cancellation or material change in the insurance policy. Promptly following the Effective Date (and prior to any use of any Products or Services provided by Deft at any Datacenter Facility), Customer shall deliver to Deft certificates of insurance evidencing the Required Insurance in effect as of the Effective Date. Thereafter, Customer shall provide Deft updated certificates for Required Insurance as such policies become renewed or are modified, promptly following Customer’s receipt thereof.

For the avoidance of any doubt, in the event Customer is required to have an item of Required Insurance under more than one Supplement, the limits and deductibles as set forth in this Section 3.7 shall suffice with respect to all such Supplements in the aggregate, rather than on a per Supplement basis. For example, even if three (3) separate Supplements require Customer to have Category C (Cyber Liability Policy) Required Insurance, the limit for such Required Insurance is not less than $1,000,000 per claim and with a maximum of $25,000 deductible or self-insured retention.

3.8 Malicious Code

Customer shall use commercially reasonable efforts not to upload any Malicious Code on any Products or Services or other property of Deft, or to otherwise transmit any Malicious Code via the use of the Deft Network or any Services. In the event Customer does upload or otherwise introduces any Malicious Code into any Products or Services or other property of Deft or otherwise transmits any Malicious Code via the use of the Deft Network or Services, Customer shall, at its sole cost and expense, promptly eliminate such Malicious Code and otherwise be responsible for and remedy any damages, losses or other adverse effects suffered by Deft, any licensors or licensees of Deft, and other Persons, resulting from such Malicious Code.

3.9 Connectivity

Except as expressly set forth in the Order, Customer shall be responsible for all hardware, networks, communication devices, and other technology necessary to enable Customer to access and/or use any Products or Services provided hereunder.

3.10 Audit

Customer shall retain all books and records and other documentation related to its performance under this Agreement for the term of this Agreement and for a period of at least one (1) year following the effective date of expiration or termination hereof. During the term of this Agreement and during the one (1) year period subsequent to the effective date of expiration or termination hereof, Deft and/or its designee shall have the right, upon at least five (5) business days’ notice to Customer and during Customer’s normal business hours, to inspect and audit all books and records and other documentation, all systems and other technology, and all facilities, of Customer relevant to ascertaining Customer’s (and, if applicable, Customer’s End Users’ or other customers’) compliance with the terms and conditions of this Agreement. Without limiting the generality of the foregoing, Customer shall cooperate in good faith with Deft and/or its designee to facilitate Deft’s exercise of its rights under this Section 3.10. In the event any inspection or audit reflects that Customer is not in compliance with the terms or conditions of this Agreement, Customer shall, at its sole cost and expense, promptly remedy such non-compliance.

4.1 Fees

In consideration of Deft’s provision of Products and/or Services under this Agreement, Customer shall pay to Deft all such fees and expenses as are (i) specified in the applicable Order(s) or (ii) if Customer has placed the order via the Deft Website or Deft’s Support Ticketing System, Deft’s then current listed prices for such Products or Services, as such Fees may be increased from time to time in accordance with the terms hereof (collectively, “Fees”). Fees set forth on any Order will remain in effect for one (1) year from the Order Effective Date (as set forth in such Order). Thereafter, the Fees described in such Order will be subject to change, at Deft’s reasonable discretion, upon at least sixty (60) days’ prior written notice to Customer.

4.2 Credit Check

Customer shall cooperate in good faith with any requests by Deft to assess Customer’s creditworthiness, including by providing to Deft financial documentation reasonably requested for such purposes.

4.3 Payment

All invoices must be paid in accordance with the terms set forth in the applicable Order and/or Supplement, without setoff or deduction of any kind, other than portions of the invoice which are subject to a good faith dispute in accordance with the terms of Section 4.6 below. Late payments of any invoices (except any portions thereof which are the subject of a good faith dispute in accordance with the terms of Section 4.6 below) will accrue interest on the unpaid sum as of the date of the invoice at the lesser of (i) the highest legal rate of interest permitted in the State of Illinois and (ii) one and one-half percent (1.5%) per month. Deft may apply any payments received by Deft to Customer’s accrued late payment charges prior to any of Customer’s outstanding invoices.

4.4 U.S. Dollars

Unless otherwise specified in an Order, all payments by Customer under this Agreement must be made by Customer to Deft in United States of America dollars.

4.5 Taxes

The Fees are exclusive of all international, federal, state and municipal taxes (including sales taxes and withholding taxes), levies, duties or similar charges, however designated, levied or imposed, that may be assessed by any jurisdiction, under current laws or regulations or as a result of any change in laws or regulations following the Effective Date (collectively, “Taxes”). Customer shall be responsible for (and shall promptly pay or reimburse Deft for, as applicable) all such Taxes as may be assessed against Deft, during the term of this Agreement or subsequent to the effective date of expiration or termination hereof, which are levied or imposed by reason of the performance by Deft or Customer or exercise of any rights thereof (including placement, ownership or operation of any Customer equipment at any Datacenter Facility (which equipment shall not be considered a “fixture” or “fitting”) under this Agreement); excluding any Taxes based on the net income of Deft.

4.Disputes

If Customer wishes to dispute any charges billed to Customer by Deft (a “Disputed Amount”), Customer must (i) pay the undisputed portion of the applicable invoice and (ii) submit a good faith claim regarding the Disputed Amount with such documentation as may reasonably be required to support the claim, within ninety (90) days of Customer’s receipt of the initial invoice sent by Deft regarding the Disputed Amount. If Customer does not submit a documented claim within such time period then, notwithstanding anything in this Agreement to the contrary, Customer waives all rights to dispute or otherwise make any claim of any kind with respect to such Disputed Amount.

The term of this Agreement commences on the Effective Date and continues until the last effective date of expiration or termination of all Orders hereunder, unless earlier terminated as provided herein.

6.1 For Convenience

Customer may terminate this Agreement, in whole or in part (including any individual Order and associated Supplement hereunder), for any or no reason, upon at least ninety (90) days prior written notice to Deft; provided that Customer pays the applicable Early Termination Charge defined in Section 7.2 below

6.2 Material Breach

At any time during the term of this Agreement, either Party may terminate this Agreement, in whole or in part (including any individual Order and associated Supplement), immediately upon written notice to the other Party, if the other Party commits a breach of any of its material obligations under this Agreement and fails to remedy such material breach (i) within five (5) days immediately following written notice thereof, if such breach is Customer’s failure to pay any amounts due under this Agreement, or (ii) otherwise, within thirty (30) days immediately following written notice thereof. Notwithstanding anything in this Agreement to the contrary, any payment required to cure a Customer breach must be remitted to Deft by official bank check or wire transfer. For the avoidance of doubt, a breach of any individual Order and/or Supplement shall be deemed a breach of this entire Agreement.

6.3 Insolvency

At any time during the term of this Agreement, unless prohibited by applicable laws, either Party may terminate this Agreement immediately upon written notice to the other Party if: (i) the other Party (a) becomes insolvent, (b) voluntarily commences any proceeding or files any petition under applicable bankruptcy laws, (c) becomes subject to any involuntary bankruptcy or insolvency proceedings under applicable laws, which proceedings are not dismissed within thirty (30) days, (d) makes an assignment for the benefit of its creditors, or (e) appoints a receiver, trustee, custodian or liquidator for a substantial portion of its property, assets or business; or (ii) the other Party passes a resolution for its winding up or dissolution or a court of competent jurisdiction makes an order for such other Party’s winding up or dissolution.

6.4 Discontinuation

In the event Deft discontinues the provision of any Products and/or Services to all of Deft’s customers or if, in Deft’s reasonable discretion, such discontinuation is necessary or advisable to comply with any applicable law or regulation or a request of any governmental or law enforcement authority, Deft may terminate those Orders and associated Supplements pertaining to such Products and Services and, if reasonably feasible, shall provide Customer at least thirty (30) days prior written notice of such discontinuation. In addition, Deft may terminate this Agreement as to any affected co-location Services or other Services provided at any Datacenter Facility, immediately upon written notice to Customer, if any portion of the Datacenter Facility in which the affected Services are located becomes subject to a condemnation proceeding or is condemned, Deft’s possession is otherwise terminated or abated, or Deft cannot provide Customer with the access to the affected Data Center Facility as contemplated herein for a period exceeding thirty (30) days. In the event any Product and/or Service is discontinued under this Section 6.4, Deft shall refund to Customer any prepaid funds for the time period associated with the discontinued Product and/or Service.

Deft7.1 Cessation

Unless otherwise agreed by the Parties, (i) by no later than the effective date of expiration or termination of any Order, Customer shall cease using any and all Products and Services provided under such Order; and (ii) by no later than the effective date of expiration or termination of this Agreement, Customer shall cease using any and all Products and Services provided under this Agreement.

7.2 Early Termination Charge

Early Termination Charge. In the event (i) Customer terminates any Order under this Agreement other than pursuant to Section 6.2 or 6.3, or (ii) Deft terminates an Order in accordance with Section 6.2 hereunder, then, without prejudice to any other rights or remedies of Deft under this Agreement, and in addition to paying to Deft any other amounts due and owing under this Agreement, Customer shall pay to Deft an “Early Termination Charge” comprising all Recurring Charges due in respect of the then current Term of the Order. Customer acknowledges and agrees that the Early Termination Charge reflects a reasonable estimate of the damages incurred by Deft as a result of an early termination, and is not a penalty.

7.3 Repossession 

Repossession. In the event of termination of any Order(s) pursuant to Section 6.2, Deft may, without prejudice to any other rights or remedies that it may have under this Agreement but subject to the terms of any applicable Supplement, disconnect, repossess and/or distrain any Products or Services that are the subject of the terminated Order(s), as well as any Customer equipment and other Customer property, located in any Datacenter Facility, subject to any rights of Customer’s lessors and lienholders which have been disclosed in writing to Deft in advance. All such property shall be deemed abandoned to the extent permissible under applicable laws, and Deft may store, use, sell, destroy or otherwise exploit or dispose of such property.

7.4 Survival  

The expiration or termination of this Agreement for any reason will not affect the accrued rights of the Parties or the right of either Party to sue for damages arising from a breach of this Agreement. Notwithstanding expiration or termination of this Agreement, (i) Customer shall remain liable to pay to Deft all Fees and other amounts due or accruing on or prior to the effective date of such expiration or termination, and (ii) the rights and obligations of the Parties set forth in this Agreement which by their terms survive the termination of this Agreement shall remain in full force and effect beyond the effective date of expiration or termination of this Agreement, including Sections 2.1.5, 2.2.4, 3.1, 3.3.2, 3.3.3, 3.4, 3.6, 3.8, 3.8, 3.10, 4, 6.2, 7, and 9 through 16.

8.1 By Deft 

Deft represents and warrants to Customer that (i) it is duly organized, validly existing and in good standing under the laws of the state of its organization, (ii) it has all requisite power and authority to enter into and perform its obligations and exercise its rights under this Agreement, (iii) its execution and performance of its obligations and exercise of its rights hereunder will not violate any agreement or other obligation by which it is bound, (iv) it will comply with all applicable laws, rules and regulations in connection with the provision of the Products and Services, and (v) this Agreement, when executed by the signatory for Deft identified below, is a legal, valid and binding obligation of Deft.

8.2 By Customer 

Customer represents and warrants to Deft that (i) it is duly organized, validly existing and in good standing under the laws of the state of its organization, (ii) it has all requisite power and authority to enter into and perform its obligations and exercise its rights under this Agreement, (iii) its execution and performance of its obligations and exercise of its rights hereunder will not violate any agreement or other obligation by which it is bound, (iv) it will comply with all applicable laws, rules and regulations in connection with the performance of its obligations and exercise of its rights hereunder, including any applicable export control laws and regulations, and (v) this Agreement, when executed by Customer, is a legal, valid and binding obligation of Customer.

8.3 Disclaimer

EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, THE PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS, AND DEFT DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, UNDER THIS AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, DEFT SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT THE PRODUCTS OR SERVICES, OR THE USE THEREOF, WILL BE AVAILABLE, SECURE, FREE OF DEFECTS, ERRORS OR MALICIOUS CODE, OR UNINTERRUPTED.

9.1 Confidential Information

Subject to Section 9.2, each Party shall treat as confidential (i) the terms and conditions of this Agreement (excluding the existence of this Agreement), and (ii) all confidential or proprietary information, data and materials the receiving Party may receive from the disclosing Party or be given access to by the disclosing Party (“Confidential Information”). Confidential Information shall specifically include all trade secrets and other non-public information, materials, data, know-how, research, systems, plans and procedures of or relating to the disclosing Party, including maps, network routes, methodologies, specifications, locations, business plans and strategies, pricing and other financial information, marketing plans, lists of existing and prospective suppliers and customers, contractual arrangements, employee information, and proprietary technologies and processes, software programs, systems, source code, specifications, inventions, designs, developments, and databases, together with compliance reports, auditor’s reports, and related work papers and records. Notwithstanding the foregoing, Confidential Information will not include any information, data or materials (a) that the receiving Party can demonstrate was lawfully received from another source with the right to furnish such information, without restriction or subject to restrictions in which it has conformed; (b) that is or becomes generally available to the public other than as a result of the unauthorized direct or indirect acts of the receiving Party; (c) which the receiving Party can demonstrate was, at the time of disclosure to it, rightfully known to it free of restriction; or (d) which is independently developed by a Party without the use of or referral to any other Party’s Confidential Information.

9.2 Non-Disclosure

Except as otherwise expressly provided in this Agreement, the receiving Party shall not, and shall not permit any other Person to, (i) use Confidential Information for any purpose other than the performance of the receiving Party’s obligations or exercise of its rights under this Agreement, or (ii) divulge such Confidential Information, without the disclosing Party’s prior written consent, except to those employees and independent contractors who have a need to know such Confidential Information for purposes of carrying out the receiving Party’s obligations or exercising the receiving Party’s rights under this Agreement. The receiving Party shall be responsible for all acts or omissions of its employees and contractors in respect of access to or use of the Confidential Information. Notwithstanding the foregoing, in the event disclosure of Confidential Information is mandated or requested by applicable laws or by an order of a court or any regulatory, governmental or law enforcement agency or other authority, each of competent jurisdiction, then, (a) if not so prohibited by a regulatory, law enforcement or other governmental authority or an order of a court of competent jurisdiction, the receiving Party shall promptly notify the disclosing Party of such requirement, (b) if so requested by disclosing Party, the receiving Party shall use good faith efforts, in consultation with the disclosing Party, to secure confidential treatment of the Confidential Information to be so disclosed, and (c) the receiving Party shall furnish only that portion of the Confidential Information it is legally required to disclose.

9.3 Notice

The receiving Party shall promptly notify the disclosing Party of any actual or reasonably suspected unauthorized use or disclosure of any Confidential Information and shall fully cooperate with the disclosing Party to remedy and/or mitigate any losses or damages associated therewith.

9.4 Publicity

Neither Party may release a public statement announcing this Agreement or any individual Order (“Press Release”) without the prior written consent of the other Party.

9.5 Non-Solicitation

Each Party agrees that, during the term of this Agreement and for a period of twelve (12) months immediately following the effective date of expiration or termination hereof, it shall not, without the other Party’s prior written consent, knowingly employ, or engage on any other basis, or solicit the employment or other engagement of, any employee, contractor or consultant of the other Party; provided, however, that general advertisements of employment or engagement shall not be considered a violation of the foregoing covenant.

9.6 Equitable Relief

Each Party acknowledges and agrees that the violation of any of its obligations or any of the other Party’s rights as set forth in this Section 9 would cause irreparable harm to the other Party, which harm may not be compensable solely by monetary damages, and that, therefore, in the event of an actual or threatened breach by the other Party of this Section 9, the non- breaching Party shall be entitled to seek injunctive and other equitable relief, without the necessity of proving monetary damages or posting a bond or other security. Any such equitable relief granted shall be without prejudice to any other rights and remedies as the non-breaching Party may have under this Agreement.

DeftDeftAs between Customer and Deft, all rights, title and interest in and to all Products and Services, all Confidential Information of Deft, and all technology, data, information and other materials utilized by or on behalf of Deft to provide any Products and/or Services under this Agreement, together with all patents, copyrights, trade secrets and other intellectual property rights in or to the foregoing (collectively, “Deft Property”), shall be and remain vested in Deft (or its third party licensors or service providers). Customer shall not do or cause to be done any act contesting or in any way impairing any rights, title or interest in any Deft Property or in any manner represent that it possesses any ownership interest in any Deft Property. Customer shall notify Deft immediately in the event Customer becomes aware of (i) any unauthorized use of any Deft Property, (ii) the loss, theft or other compromise of any Access Method of Customer, and/or (iii) any information relating to any alleged or suspected infringement or other violation of any Deft Property. Notwithstanding the foregoing, Deft shall not have any obligation under this Agreement to investigate, prosecute or otherwise take any action of any violation of which it is notified by Customer, and Customer shall have no right to prosecute or otherwise take any action in respect of such violation.

11.1 General Limitation

IN NO EVENT SHALL DEFT OR CUSTOMER BE LIABLE UNDER THIS AGREEMENT TO ANY PERSON FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES, OR FOR LOSS OF PROFITS, LOSS OF DATA (INCLUDING CUSTOMER DATA) OR TECHNOLOGY, GOODWILL, CONTRACTS OR LOST BUSINESS OPPORTUNITIES (WHETHER ARISING OUT OF TRANSMISSION INTERRUPTIONS OR PROBLEMS, ANY INTERRUPTION OR DEGRADATION OF SERVICE, CONSTRUCTION, INSTALLATIONS, REPAIR, MAINTENANCE, OR OTHERWISE), WHETHER ARISING FROM NEGLIGENCE, BREACH OF CONTRACT OR OTHERWISE, AND WHETHER OR NOT ANY SUCH PERSON HAS BEEN ADVISED OF, HAS FORESEEN, OR REASONABLY COULD HAVE FORESEEN SUCH DAMAGES. FURTHER, EXCEPT AS EXPRESSLY PROVIDED UNDER THIS AGREEMENT, IN NO EVENT SHALL DEFT BE LIABLE HEREUNDER FOR ANY PRODUCTS OR SERVICES OF ANY THIRD PARTY PROVIDER THAT ARE PROCURED OR PROVIDED BY DEFT HEREUNDER OR USED BY OR ON BEHALF OF DEFT TO PROVIDE ANY PRODUCTS OR SERVICES.

11.2 Monetary Cap

THE LIABILITY OF DEFT UNDER THIS AGREEMENT FOR ANY DAMAGES TO OR LOSS OF ANY EQUIPMENT OR OTHER PROPERTY LOCATED ON BEHALF OF CUSTOMER IN ANY DATACENTER FACILITY, OR OTHERWISE USED IN CONNECTION WITH ANY PRODUCTS OR SERVICES PROVIDED UNDER THIS AGREEMENT, SHALL NOT EXCEED THE LESSER OF (i) THE ACTUAL CASH VALUE OF SUCH PROPERTY AND (ii) THE CAP (DEFINED BELOW). IN NO EVENT SHALL THE LIABILITY OF DEFT UNDER THIS AGREEMENT EXCEED, IN THE AGGREGATE, ONE POINT FIVE TIMES (1.5X) THE TOTAL FEES PAYABLE BY CUSTOMER, WITH RESPECT TO THE SPECIFIC PRODUCTS OR SERVICES GIVING RISE TO SUCH LIABILITY, DURING THE FIRST YEAR OF THE TERM SET FORTH IN APPLICABLE ORDER (THE “CAP”).

11.3 Exclusions

NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS SET FORTH IN THIS SECTION 11 SHALL NOT APPLY TO (i) ANY LIABILITY CAUSED BY THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF A PARTY, (ii) ANY LIABILITY OF EITHER PARTY ARISING FROM ITS BREACH OF SECTION 9, (iii) CUSTOMER’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 12.2, (iv) DEFT’S INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 12.1.1, AND/OR (v) ANY LIABILITY THAT CANNOT BE EXCLUDED UNDER ANY APPLICABLE LAWS. CUSTOMER WAIVES ANY RIGHT TO SEEK INJUNCTIVE RELIEF FOR ANY CAUSE OR MATTER ARISING FROM THIS AGREEMENT, EXCEPT AS PROVIDED IN SECTION 9.6.

11.4 Time Limitation

Customer may not, and hereby waives any right to, bring any claim against Deft arising out of or in connection with this Agreement more than one (1) year after the effective date of expiration or termination of the Order relating to the Products or Services giving rise to such claim.

12.1 By Deft

12.1.1 Indemnity

Deft agrees to indemnify, defend and hold Customer and its officers, directors, employees, agents and contractors (collectively, the “Customer Parties”) harmless from and against all losses, damages, liabilities, costs and expenses, including reasonable attorney’s fees and expenses (collectively, “Losses”) incurred or suffered by such Customer Parties arising out of, or in connection with, any claim, demand, proceeding, investigation or cause of action initiated by a third party (each, a “Claim”) based upon or arising out of: (i) bodily injury or death, and damage, loss or destruction of any real or tangible personal property, caused by Deft’s gross negligence or willful misconduct; and/or (ii) any allegation that any Products or Services owned by Deft, or Customer’s use thereof in accordance with the terms of this Agreement (excluding any Products or Services provided by any Third Party Provider), infringe or otherwise violate any patent, copyright, trade secret or other intellectual property right of any Person. Notwithstanding the foregoing, Deft shall have no obligations under (a) this Section 12.1.1, to the extent the Claim arises from or in connection with the willful misconduct or gross negligence of Customer or any other Customer Parties, or (b) to the extent such Claim is based upon any use by Customer of any Products or Services in violation of any terms of this Agreement, any modification by Customer of any Products or Services, or any combination of any Products, or use of any Services, with any technology or other materials not provided by Deft. THE RIGHTS AND REMEDIES SET FORTH IN THIS SECTION 12.1 CONSTITUTE CUSTOMER’S SOLE RIGHTS AND REMEDIES FOR ANY CLAIMS OF INFRINGEMENT OR OTHER VIOLATIONS OF ANY PROPRIETARY RIGHTS ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, AND/OR ANY PRODUCTS OR SERVICES PROVIDED HEREUNDER.

12.1.2 Infringing Items

In the event Deft becomes aware or reasonably suspects that any portion of any Products or Services may infringe or otherwise violate any proprietary rights of any Person, Deft may, to the extent reasonably feasible and in its sole discretion, (i) modify such item so that it is no longer in violation or potentially in violation of such rights, (ii) replace such portion of any Products or Services with items Deft believes to be non- infringing (provided that, no modifications or replacements provided under clauses (i) or (ii) shall adversely affect in any material respect any functionality or feature of the relevant Products or Services) and/or (iii) terminate the Orders or other parts of this Agreement pertaining to such Products and Services, upon notice to Customer, and refund to Customer that portion of any Fees paid prior to the effective date of termination in respect of use of the affected Products and/or Services following the effective date of such termination.

12.2 By Customer

Customer agrees to indemnify, defend and hold Deft and its Third Party Providers and its officers, directors, employees, agents and contractors (collectively, “Deft Parties”), harmless from and against all Losses incurred or suffered by such Deft Parties arising out of, or in connection with, any third party Claim (including any Claim by customers of Customer) based upon or arising out of: (i) bodily injury or death or damage, loss or destruction of any real or personal property (including without limitation the property of Deft), caused by Customer’s gross negligence or willful misconduct; (ii) any breach by Customer of any provision of this Agreement; (iii) subject to Section 12.1.1(ii), any use by Customer (or any of Customer’s customers, including any End Users, or any Person using Customer’s Access Methods), of any Products or Services, or any other act or omission relating thereto; (iv) any End User Agreement; and/or (v) any Customer Data. Notwithstanding the foregoing, Customer shall have no obligations under this Section 12.2 to the extent the Claim arises from or in connection with the willful misconduct or gross negligence of Deft or any other Deft Parties.

12.3 Procedures

The indemnified Party shall use good faith efforts to notify the indemnifying Party of any Claim for which indemnification is sought hereunder as soon as possible after it becomes aware of the Claim and, in any event, within five (5) business days after it becomes aware of the Claim; provided that the failure to provide such notice within such timeframe shall not constitute a breach hereof or serve to release the indemnifying Party from its obligations under this Section unless such failure prejudices the ability of the indemnifying Party to defend the Claim. The indemnifying Party shall be entitled, in its discretion, to have sole conduct and control of all legal proceedings in connection with such Claim and/or the settlement or other compromise thereof. If the indemnifying Party elects to exercise such control, the indemnified Party shall give the indemnifying Party (and any Person acting on behalf of or authorized by the indemnifying Party) all reasonable assistance therewith, at the indemnifying Party’s reasonable expense. Notwithstanding the foregoing, (i) the indemnifying Party shall not, without the indemnified Party’s prior written consent, agree to any judgment or enter into any settlement or other compromise that adversely affects the interests of the indemnified Party, and (ii) the indemnified Party shall have the right, at its own expense, to participate in the defense of any Claim.

Neither Party will be considered in breach of this Agreement nor liable under this Agreement for any delays, failures to perform, damages or losses, or any consequence thereof, excluding any failure to pay any amounts due hereunder, caused by or attributable to any cause beyond the reasonable control of the Party claiming relief (each, a “Force Majeure Event”), including but not limited to the action by a governmental authority (such as a moratorium on any activities related to this Agreement or changes in government codes, ordinances, laws, rules, regulations, or restrictions occurring after the Effective Date), third-party labor dispute, flood, earthquake, fire, lightning, epidemic, war, act of terrorism (including cyber terrorism), riot, civil disturbance, act of God, sabotage, fiber cut caused by a third-party or failure of a third party to recognize a permit, authorization, right-of-way, easement, right, license or other agreement obtained by Deft to construct and/or operate any of its facilities or networks.

14.1 Escalation

In the event of any claim, dispute, controversy, or other matter in question between the Parties arising out of or relating to this Agreement or the breach hereof, excluding any third party claims subject to indemnification pursuant to Section 12, but including any disagreements as to indemnification rights hereunder (each, a “Dispute”), such Dispute shall be referred to senior officers of each Party who must, within fourteen (14) days following such referral, use good faith efforts to attempt to resolve the Dispute. If the Parties cannot resolve any Dispute in accordance with this Section 14.1 within fourteen (14) calendar days, the Parties may seek judicial resolution and remedy of the Dispute.

14.2 Limitations

Customer may not seek judicial resolution and remedy of any Dispute until the Parties have complied with the procedures set forth in Sections 14.1.

14.3 Contravention of Performance

Each Party shall continue performing its obligations under this Agreement while any Dispute is being resolved, unless otherwise agreed by the Parties or ordered by a court of competent jurisdiction, except to the extent such obligations are terminated pursuant to the terms of this Agreement.

Except as otherwise set forth in this Agreement, all notices, including but not limited to, demands, requests and other communications required or permitted hereunder (not including invoices) must be in writing and will be deemed given: (i) when delivered in person, (ii) one (1) business day after deposit with a nationally renowned (e.g., Federal Express, UPS) overnight delivery service for next day delivery, or (iii) five (5) business days after deposit in the United States mail, postage prepaid, registered or certified mail, return receipt requested. Notices to Deft shall be sent to ServerCentral, Inc., 111 W. Jackson Blvd., Suite 1600, Chicago, IL 60604-3589, or such other address for such purposes of which Deft notifies Customer. Notices to Customer for breach or termination of this Agreement shall be sent to such address for Customer set forth on the initial Order by Customer, or such alternative address for such purposes of which Customer provides Deft written notice. In addition, Deft shall have the right to send Customer notices (other than notices for breach or termination) to Customer’s email address set forth on Deft’s customer contact list. Such email notification shall be deemed delivered on the day sent unless returned to sender.

16.1 Entire Agreement

This Agreement, together with all exhibits hereto, constitutes the entire understanding between the Parties with respect to the subject matter hereof and supersedes all prior representations, agreements, negotiations and discussions between the Parties with respect to the subject matter hereof.

16.2 Amendments

Deft may modify, supplement and/or otherwise amend this Agreement from time to time in Deft’s discretion, upon written notice to Customer, and such Amendment shall be effective upon such notification. Customer’s continued use of any Products and/or Services following such notice by Deft of amendment of this Agreement will be deemed to constitute Customer’s acceptance of such amendment. Except as expressly provided for herein, this Agreement may not be modified, supplemented or otherwise amended by Customer except pursuant to the written agreement of each Party.

16.3 Assignment

Neither Party may assign or transfer its rights or obligations under this Agreement without the prior written consent of the other Party, which consent may not be unreasonably withheld, except that either Party may assign this Agreement upon notice and without consent to (i) an Affiliate of such Party or (ii) a Person into which it is merged or consolidated or which purchases all of its equity interests or all or substantially all of its assets; provided that the assignee assumes all liabilities hereunder in writing prior to the effectiveness of such assignment. Any assignment or transfer without the required consent will be void and will be considered a material breach of this Agreement. Upon any permitted assignment, the assigning Party will remain jointly and severally responsible for the performance under this Agreement, unless released in writing by the other Party. For the avoidance of doubt, any such assignee must comply with the terms of Section 4.2. This Agreement will be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns.

16.4 Binding Provisions / Third Party Beneficiaries

This Agreement is binding upon, and shall inure to the benefit of, the Parties and their respective administrators, legal representatives, successors, heirs and permitted assigns, as applicable. Except as set forth in Section 12, the Parties agree that no provision of this Agreement is intended, expressly or by implication, to purport to confer a benefit or right of action upon a third party (whether or not in existence, and whether or not named, as of the Effective Date).

16.5 Relationship

Nothing in this Agreement shall constitute or be deemed to establish a partnership, joint venture, association or employment relationship between the Parties, and neither Party shall have the authority or power to bind the other Party, or to contract in the name of the other Party, in any manner or for any purpose.

16.6 No Lease

This Agreement is not intended to and will not constitute a lease or license of any real property or a grant of any other interest in any real property. This Agreement shall be subject and subordinate to any leases or licenses of Deft for any Data Center Facility.

16.7 Severability of Provisions

Each provision of this Agreement shall be considered separable; and if, for any reason, any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, unlawful, or unenforceable, such determination shall not affect the enforceability of the remainder of this Agreement or the validity, lawfulness, or enforceability of such provision in any other jurisdiction. If any court of competent jurisdiction shall deem any provision of this Agreement too restrictive, the other provisions hereof shall stand, and the court shall modify the provisions at issue to the point of greatest restriction permissible by applicable laws.

16.8 Waiver

The failure of a Party to exercise or enforce any right conferred upon it by this Agreement shall not be deemed to be a waiver of any such right or operate so as to bar the exercise or enforcement thereof at any time or times thereafter. No waiver by either Party hereunder shall be effective unless agreed to pursuant to a writing signed by a duly authorized representative of each Party.

16.9 Remedies Not Exclusive

No remedy conferred by any provision of this Agreement is intended to be exclusive of any other remedy, except as expressly provided in this Agreement, and each and every remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing in law or in equity or by statute or otherwise.

16.10 Attorney’s Fees

If a Party retains counsel for collection or enforcement of the other Party’s obligations hereunder or to represent Deft in any bankruptcy, reorganization or, receivership proceedings, then the prevailing Party shall promptly reimburse the other Party for all reasonable attorneys’ fees, costs and expenses incurred in connection therewith.

16.11 Interpretation

References to sections and exhibits are to sections of, and exhibits to, this Agreement, unless otherwise indicated. Section headings are inserted for convenience of reference only and shall not affect the construction of this Agreement. The singular number shall include the plural, and vice versa. Any use of the word “including” will be interpreted to mean “including, but not limited to,” unless otherwise indicated. All references to dollars (including via the symbol “$”) shall refer to the currency United States dollars. References to any Person (including the Parties and any other entities referred to) shall be construed to mean such Person and its successors in interest and permitted assigns, as applicable.

16.12 Inconsistency

In the event of any inconsistency between the terms of the main body of this Agreement and any Order or Supplement hereto, the terms of the main body of this Agreement will govern to the extent of the inconsistency.

16.13 Governing Law and Venue

The validity and effectiveness of this Agreement shall be governed by, and construed and enforced in accordance with, the internal laws of the State of Illinois, without giving effect to the provisions, policies or principles of any state law relating to choice or conflict of laws. Subject to Section 14, any legal action or proceeding with respect to this Agreement shall be brought exclusively in the Federal or state courts located in Chicago, Illinois, including the United States District Court for the Northern District of Illinois. Each Party waives, to the fullest extent permitted by applicable laws, any objection to the laying of venue in such courts of any legal action or proceeding arising out of or relating to this Agreement and any claim that any such action or proceeding has been brought in an inconvenient forum. EACH PARTY IRREVOCABLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT. Service of process shall be made in any manner allowed by applicable laws.