Services Agreement

This Master Products and Services Agreement is by and between ServerCentral, LLC (“Summit“), a Delaware company, and the individual or entity purchasing Products and/or Services from Summit (“Customer“), pursuant to one or more Orders. Summit 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.

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

“Datacenter Facility” – a location where Summit 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 Summit and Customer.

“Malicious Code” – any computer virus, Trojan horse, worm, time bomb, or other similar code 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 charges set forth in an Order.

“Summit Network” – collectively, the fiber optic network, system capacity and related facilities owned or controlled by Summit.

“Summit Website” – Summit’s website, published at https://summithq.com.

“Service Level” or “SLA” – performance target for specific Services provided by Summit, 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 applicable to any Products and/or Services to be provided under this Agreement, which is posted on the Summit Website and may be amended from time to time by Summit in its sole discretion.

“Term” – the period of time in which Summit 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 Summit under this Agreement shall be set forth in individual order forms, each of which will describe the Products and/or Services to be provided and the Fees to be charged therefor, the applicable Commencement Date and Term, and other relevant terms agreed upon by the Parties.

2.1.2 Change Requests

Any change(s) to the nature or scope of any Products or Services must be agreed in an amended Order signed by authorized representatives of both Parties.

2.1.3 Order Terms

The initial Term of each Order shall begin on the Commencement Date 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 will automatically renew for successive twelve (12) month terms unless either Party provides written notice of non-renewal at least ninety (90) days prior to the end of the then current Term.

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 Summit is required to procure from a third party any of the Products or Services listed on an Order, Customer agrees to comply with any and all terms and conditions specified by such Third Party Provider.

2.1.6 Data Center Facilities

Customer shall comply with any and all security and facility policies, rules and regulations of Summit 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 incorporated into, and subject to, the terms of this Agreement. No SLA for any Services is applicable during any trial period or during initial configuration or implementation of such Services.

2.2.2 Credits

In the event of a failure by Summit to meet any SLA, Summit 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, subject to the terms and conditions of this Section 2.2 and the relevant Supplement.

2.2.3 Credit Request

To receive a Credit, Customer must notify Summit within five (5) business days from the time Customer becomes eligible to receive such Credit and provide Summit any such information as Summit may request regarding the qualifying event.

2.2.4 Remedy

UNLESS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, ANY CREDITS AWARDED BY SUMMIT SHALL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE BY SUMMIT TO MEET ANY SLA AND ANY OTHER FAILURE, UNAVAILABILITY, DEGRADATION OR NONPERFORMANCE OF ANY SERVICES.

2.2.5 Exclusions

Customer shall not receive any Credit to the extent Summit’s failure to meet the applicable SLA is caused by: a Force Majeure Event; failure of local access circuits not caused solely by Summit; scheduled or emergency maintenance; failure of any equipment owned by Customer; acts or omissions of Customer; or modification, suspension or discontinuation of the relevant Services in accordance with the terms of this Agreement.

2.3 Scope of Use

The Products and Services are provided only for Customer’s internal use. 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, except as expressly set forth in this Agreement.

2.4 Suspension

Summit may suspend its provision to Customer of any or all Products and Services immediately upon notice to Customer in the event of a material breach of the Acceptable Use Policy, repeated violations, failure to cooperate with any inspection or audit, suspected violation of applicable laws or regulations, or material breach of other obligations under this Agreement.

2.5 Security

Summit 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 will be secure.

3.1 Access Methods

Summit shall use commercially reasonable efforts to employ measures it deems appropriate to endeavor to mitigate security risks with respect to its Products and Services.

3.2 Acceptable Use

Customer shall at all times comply with Summit’s Acceptable Use Policy, as set forth on the Summit Website, as such requirements may be amended by Summit from time to time.

3.3 Products

Customer shall have the right to use any Products provided by Summit solely during the Term of the applicable Order, provided that all Fees owed in respect thereof are paid when due. Customer agrees not to copy, modify, decompile, reverse engineer, or otherwise reduce to a humanly perceivable form any Software provided by Summit.

3.4 Purchased Hardware

Summit warrants Purchased Hardware shall be free from defects for a period of thirty (30) days from the date of delivery to Customer. Purchased Hardware may not be returned to Summit for any reason except in the event a material defect is reported within the Summit Hardware Warranty Period and Summit is unable to provide an identical or reasonably equivalent product.

3.5 Customer Data

As between Summit 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 the integrity and security of such Customer Data, backing up and retaining archival copies, and ensuring such Customer Data complies with all applicable laws and regulations.

3.6 Use of Summit IP Addresses

Any IP Addresses assigned to Customer by Summit remain the sole property of Summit, and may be used only in connection with and for the duration of the Services purchased.

3.7 Customer Insurance

Customer shall have, and maintain at its own expense throughout the term of this Agreement, insurance coverage acceptable to Summit, which shall at a minimum include the Required Insurance categories specified in the applicable Supplements.

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 Summit.

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

Summit shall have the right, upon at least five (5) business days’ notice, to inspect and audit all books and records and other documentation relevant to ascertaining Customer’s compliance with the terms and conditions of this Agreement.

4.1 Fees

In consideration of Summit’s provision of Products and/or Services, Customer shall pay to Summit all fees and expenses as specified in the applicable Order(s). Fees set forth on any Order will remain in effect for one (1) year from the Order Effective Date, after which they are subject to change upon at least sixty (60) days’ prior written notice.

4.2 Credit Check

Customer shall cooperate in good faith with any requests by Summit to assess Customer’s creditworthiness, including by providing 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, without setoff or deduction of any kind. Late payments will accrue interest at the lesser of the highest legal rate permitted in the State of Illinois and one and one-half percent (1.5%) per month.

4.4 U.S. Dollars

Unless otherwise specified in an Order, all payments must be made in United States dollars.

4.5 Taxes

The Fees are exclusive of all taxes, levies, duties or similar charges. Customer shall be responsible for all such Taxes as may be assessed against Summit, excluding any Taxes based on the net income of Summit.

4.6 Disputes

If Customer wishes to dispute any charges, Customer must pay the undisputed portion of the applicable invoice and submit a good faith claim regarding the disputed amount within ninety (90) days of Customer’s receipt of the initial invoice.

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, for any or no reason, upon at least ninety (90) days prior written notice to Summit; provided that Customer pays the applicable Early Termination Charge.

6.2 Material Breach

Either Party may terminate this Agreement immediately upon written notice to the other Party, if the other Party commits a breach of any of its material obligations and fails to remedy such breach within five (5) days (for payment failures) or thirty (30) days (for all other breaches) following written notice.

6.3 Insolvency

Either Party may terminate this Agreement immediately upon written notice if the other Party becomes insolvent, files for bankruptcy, makes an assignment for the benefit of its creditors, or appoints a receiver or trustee for a substantial portion of its property or assets.

6.4 Discontinuation

Summit may terminate Orders pertaining to discontinued Products and Services and, if reasonably feasible, shall provide Customer at least thirty (30) days prior written notice of such discontinuation. Summit shall refund to Customer any prepaid funds for the time period associated with the discontinued Product and/or Service.

7.1 Cessation

By no later than the effective date of expiration or termination, Customer shall cease using any and all Products and Services provided under this Agreement.

7.2 Early Termination Charge

In the event Customer terminates any Order other than pursuant to Section 6.2 or 6.3, Customer shall pay to Summit an Early Termination Charge comprising all Recurring Charges due in respect of the then current Term of the Order.

7.3 Repossession

In the event of termination pursuant to Section 6.2, Summit may 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.

7.4 Survival

The expiration or termination of this Agreement will not affect the accrued rights of the Parties. Customer shall remain liable to pay to Summit all Fees and other amounts due or accruing on or prior to the effective date of such expiration or termination.

8.1 By Summit

Summit represents and warrants that it is duly organized and validly existing, has all requisite power and authority to enter into and perform its obligations under this Agreement, and will comply with all applicable laws, rules and regulations in connection with the provision of the Products and Services.

8.2 By Customer

Customer represents and warrants that it is duly organized and validly existing, has all requisite power and authority to enter into and perform its obligations under this Agreement, and will comply with all applicable laws, rules and regulations, including any applicable export control laws and regulations.

8.3 Disclaimer

EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, THE PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS. SUMMIT DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

9.1 Confidential Information

Each Party shall treat as confidential all confidential or proprietary information, data and materials the receiving Party may receive from the disclosing Party, including trade secrets and other non-public information, business plans and strategies, pricing and financial information, proprietary technologies and processes, software programs, and databases.

9.2 Non-Disclosure

The receiving Party shall not use Confidential Information for any purpose other than the performance of the receiving Party’s obligations under this Agreement, or divulge such Confidential Information without the disclosing Party’s prior written consent.

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.

9.4 Publicity

Neither Party may release a public statement announcing this Agreement or any individual Order without the prior written consent of the other Party.

9.5 Non-Solicitation

During the term of this Agreement and for a period of twelve (12) months following expiration or termination, each Party agrees not to knowingly employ or solicit any employee, contractor or consultant of the other Party without prior written consent; provided that general advertisements of employment shall not constitute a violation.

As between Customer and Summit, all rights, title and interest in and to all Products and Services, all Confidential Information of Summit, and all technology, data, information and other materials utilized by or on behalf of Summit to provide any Products and/or Services, together with all patents, copyrights, trade secrets and other intellectual property rights in or to the foregoing, shall be and remain vested in Summit (or its third party licensors or service providers).

11.1 General Limitation

IN NO EVENT SHALL SUMMIT 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 OR TECHNOLOGY, GOODWILL, CONTRACTS OR LOST BUSINESS OPPORTUNITIES.

11.2 Monetary Cap

IN NO EVENT SHALL THE LIABILITY OF SUMMIT 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 THE APPLICABLE ORDER (THE “CAP”).

11.3 Exclusions

The limitations set forth in this Section 11 shall not apply to any liability caused by the willful misconduct or gross negligence of a Party, any liability arising from breach of Section 9, or Customer’s indemnification obligations set forth in Section 12.2.

11.4 Time Limitation

Customer may not bring any claim against Summit 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 Summit

Summit agrees to indemnify, defend and hold Customer and its officers, directors, employees, agents and contractors harmless from and against all losses arising out of any third party claim based upon: (i) bodily injury or death caused by Summit’s gross negligence or willful misconduct; and/or (ii) any allegation that any Products or Services owned by Summit infringe any patent, copyright, trade secret or other intellectual property right.

12.2 By Customer

Customer agrees to indemnify, defend and hold Summit and its Third Party Providers and its officers, directors, employees, agents and contractors harmless from and against all losses arising out of any third party claim based upon: (i) bodily injury or death caused by Customer’s gross negligence or willful misconduct; (ii) any breach by Customer of any provision of this Agreement; (iii) any use by Customer of any Products or Services; (iv) any End User Agreement; and/or (v) any Customer Data.

12.3 Procedures

The indemnified Party shall notify the indemnifying Party of any Claim for which indemnification is sought as soon as possible after becoming aware of 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.

Neither Party will be considered in breach of this Agreement nor liable for any delays or failures to perform caused by or attributable to any cause beyond the reasonable control of the Party claiming relief, including governmental action, labor disputes, flood, earthquake, fire, lightning, epidemic, war, act of terrorism, riot, civil disturbance, act of God, sabotage, or fiber cuts caused by a third party.

14.1 Escalation

In the event of any 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 within fourteen (14) calendar days, the Parties may seek judicial resolution.

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 Section 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 as otherwise set forth in this Agreement, all notices 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 overnight delivery service, or (iii) five (5) business days after deposit in the United States mail, postage prepaid, registered or certified mail. Notices to Summit shall be sent to Summit, 2200 Busse Road, Elk Grove Village, IL 60007.

16.1 Entire Agreement

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

16.2 Amendments

Summit may modify, supplement and/or otherwise amend this Agreement from time to time upon written notice to Customer. Customer’s continued use of any Products and/or Services following such notice will be deemed to constitute Customer’s acceptance of such amendment.

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, except that either Party may assign this Agreement to an Affiliate or to a Person into which it is merged or consolidated.

16.4 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. Any legal action or proceeding shall be brought exclusively in the Federal or state courts located in Chicago, Illinois.

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“) and the customer (“Customer“) identified in the order form (“Order Form“) submitted to us, and is effective as of the date you submit your purchase request.

The individual who has submitted an Order Form represents that they (i) are at least 18 years of age, (ii) have read and understood the terms and conditions of this Agreement, (iii) have full legal authority to bind Customer to this Agreement, and (iv) agree, 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.

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 unless terminated pursuant to this Agreement.

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.

Desktop-as-a-Service (DaaS) Services

For Summit Hosting’s DaaS Services, Summit Hosting will host the third-party software applications as set forth on the Order Form and grants to Customer the right to access those Hosted Applications via a server area designated for Customer.

Authorized Access

Summit Hosting will provide access to the applicable Server to authorized individuals. Customer shall designate a User Administrator responsible for issuing and managing Login Credentials for all Authorized Users. Customer is responsible for all acts and failures to act of its Authorized Users.

Customer Data Backups

Summit Hosting shall back up all Customer Data stored in the Server daily, seven days per week. Active daily data backups are retained for not less than fifteen (15) days, and archival backups are retained for up to six (6) months where included in Services. Customer is responsible for separately backing up its Customer Data.

Private Cloud Service

Summit Hosting will provide its private cloud service according to the terms and conditions set forth in the Summit Hosting Private Cloud Service Agreement, which is incorporated herein by reference.

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, which is incorporated herein by reference.

Restrictions on Use

Customer agrees it will not use Summit Hosting’s Services to engage in illegal activities, store or transmit data in violation of applicable law, engage in crypto-mining, launch denial of service or phishing attacks, send spam communications, or use Summit Hosting’s servers to make or receive payments that are illegal under applicable law.

“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.

Customer retains ownership of all Customer Data received by Summit Hosting. 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.

Summit Hosting shall maintain a comprehensive, written information security program in compliance with applicable laws, regulations, and industry standards, including measures designed to preserve and protect the security, availability, integrity, and confidentiality of Customer Data. This program includes industry-standard encryption, role-based access controls with multi-factor authentication, continuous security monitoring, regular vulnerability assessments and penetration tests, regular security awareness training, a formal incident response plan, and a comprehensive disaster recovery and business continuity plan.

Server Availability

Summit Hosting will use commercially reasonable efforts to have its servers and/or the Service available 24 hours per day, 7 days per week. Summit Hosting’s goal is to maintain a monthly average Availability of at least 99%.

Scheduled Maintenance

Summit Hosting performs Scheduled Maintenance on a routine basis, typically during off-peak hours (12 a.m. – 6 a.m. Eastern US time), during which some or all of the Services or Hosted Applications may not be available or may have slow response times.

Performance Credits

For Customers who purchase an Initial Term of at least twelve (12) months, Summit Hosting provides performance credits if Availability falls below 99% in a given calendar month:

Server Availability	% 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%

To receive a credit, Customer must specifically request it no later than thirty (30) days following the month for which the credit is owed.

Pricing

Pricing for the Services is as set forth on the applicable Website page or Order Form. Summit Hosting reserves the right to modify pricing at any time, and the revised pricing will appear on Summit Hosting’s Website or invoice.

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. For month-to-month Terms, monthly subscription access fees are invoiced in advance and payment is due within fifteen (15) days of invoice.

Interest on Overdue Amounts

Any amounts payable 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, or the maximum rate permitted by law. If Customer’s account is not brought current within thirty (30) days of suspension, Summit Hosting has the right to terminate this Agreement.

Summit Hosting’s Representations and Warranties

Summit Hosting represents and warrants that it shall use commercially reasonable efforts to ensure that Customer’s use of the Services will not contain or introduce any Malicious Code into Customer’s systems. Summit Hosting represents and warrants that all Services shall be performed in a professional and workmanlike manner.

Disclaimers

OTHER THAN AS EXPRESSED IN THIS AGREEMENT, THE SERVICES RENDERED BY SUMMIT HOSTING ARE PROVIDED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND. 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

Customer represents and warrants that Customer Data shall not contain any content that violates any applicable law or regulation or infringes or misappropriates any proprietary, intellectual property, contract or tort right of any third party. Customer represents and warrants that Customer Data being hosted by Summit Hosting shall not be used in connection with any illegal activity.

Either party may terminate this Agreement if the other party is in default thereof and has not cured such default within thirty (30) days of receiving written notice (except payment obligations).

Summit Hosting may terminate this Agreement immediately if Customer’s use of the Services is abusive or illegally harasses third parties, if Customer’s activities may defame, harm, abuse, threaten, or harass third parties, for activities prohibited by applicable law, or for Customer’s practices that encourage unlawful behavior.

Effect of Termination

Upon termination of this Agreement, all rights granted by Summit Hosting shall immediately terminate. Termination 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 will immediately be due.

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 in the transfer of Customer’s applications at Summit Hosting’s then-current hourly rates.

Summit Hosting shall indemnify, defend, and hold harmless Customer from and against any third-party claims arising from: (a) an allegation that the Services infringe any United States patent, copyright, trade secret or other property right; (b) any failure by Summit Hosting 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.

Customer agrees to indemnify, defend, and hold harmless Summit Hosting from any and all third-party claims 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.

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 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.

EXCEPT FOR INTELLECTUAL PROPERTY INFRINGEMENT, BREACH OF CONFIDENTIALITY, AND INDEMNIFICATION OBLIGATIONS, 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, OR LOST PROFIT.

Mandatory Binding Arbitration

In the event of any dispute, claim, question or disagreement arising from or relating to this Agreement, the parties shall use good faith efforts to settle the Dispute within thirty (30) days. If no resolution is reached, 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 (AAA).

Class Action Waiver

Any proceedings to resolve or litigate any dispute 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 in a representative capacity.

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

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.

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. All email notifications to Summit Hosting shall be sent to support@summithq.com.

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.

Entire Agreement

This Agreement, including all Order Forms, SOWs, and other documents expressly incorporated herein by reference, sets forth the entire understanding and agreement between Customer and Summit Hosting regarding the subject matter of this Agreement.

Changes to this Agreement

Summit Hosting may revise and update this Agreement from time to time in its sole discretion. All changes are effective as of January 2024 and apply to all access to and use of the Services thereafter.