Co-Location Terms and Conditions Agreement for services to be provided
by
Summersault, LLC
914 E Main St
Richmond, IN 47374
to
<client name>
<client address>
1.Provision of Services. Subject to the terms and conditions of the Agreement, Summersault, LLC. (Summersault) will provide certain server co-location and related services (Services) to <client name> (Customer). Any use of Summersault' Services shall be deemed to constitute acceptance by Customer of this Agreement and of Summersault' Acceptable Use Policy (including any amendments, modifications or new conditions) as published and made available via a link on the Summersault support page at http://support.summersault.com.
The Services may include the co-location of equipment procured by Customer (or on its behalf) at the facilities of Summersault. Except as may be requested by Customer and as specifically described in a service order from Summersault to Customer, Summersault shall have no responsibility or liability for the transport, delivery, condition, operation, or use or maintenance of hardware, software, or communications equipment (Software and Equipment) of Customer. Customer shall be responsible for all necessary preparations required to permit installation, maintenance, and operation of the Software and Equipment.
Customer shall insure all equipment co-located at Summersault' facilities in an amount reasonably necessary to cover risk of damage or loss and will cause Summersault to be named as an additional insured on any equipment co-located at Summersault' facility. The Customer agrees to provide a certificate evidencing such insurance upon the request of Summersault.
2.Payment Obligations. The Services will be billed in advance. Unless otherwise agreed to in a service order or from Summersault to Customer, Summersault may change its prices from time to time upon 30 days written or electronic mail notice to Customer. Telecommunications charges are subject to change if taxes relating to telecommunications are assessed by a government authority. Customer is responsible for any charges it may incur in connecting to Summersault. All charges by Summersault are non-refundable.
If Summersault procures and/or installs hardware or communications equipment in connection with the Services, the applicable installation and purchase charges shall be indicated on Summersault' service order. Equipment and supplies procured by Summersault to provide Services shall be the property of Summersault unless otherwise expressly stated on the service order. Software licensing and obligations as a licensee are the sole responsibility of the Customer.
3.Appropriate Use of Services. Customer has read and accepts the Acceptable Use Policy of Summersault and will abide by its terms and in a way that conforms with all applicable laws and regulations. Customer understands and agrees that Summersault reserves the right to immediately remove from (with or without terminating Customer's account), or deny access to, any material or information that infringes (or that is alleged to infringe) on another's property rights to the extent such material or information is present through Customer's account with Summersault. Customer consents to such removal and/or denial of access and shall indemnify and hold Summersault harmless from any costs or liabilities resulting from claims of infringement of another party's intellectual property rights resulting from use of Customer's account.
4.Security. Customer agrees to keep its passwords private and confidential. Customer understands that the use of or connection to the Internet is inherently insecure and provides opportunity for unauthorized access by a third party to Customer's computer systems, networks, and any and all information stored therein. Summersault shall not be responsible for any adverse consequences whatsoever arising from Customer's connection to or use of the Internet.
5.Access. At certain times, Customer may be unable to access the Internet or any network maintained by Summersault, and disconnections from the Internet or any network may occur from time to time. Summersault cannot guaranty that its services will not be subject to stoppages or other disruptions. Summersault shall not be responsible for losses or damages caused by stoppages or breakdowns of its, or any other party's equipment, wherever located.
6.Warranty Disclaimer. Customer understands that the use of its Summersault account, and any data of information maintained or accessed using that account, will be completely at Customer's own risk.
ALL SERVICES PROVIDED BY SUMMERSAULT (INCLUDING WITHOUT LIMITATION ALL MAINTENANCE SERVICES) ARE PROVIDED AS IS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES OF NON-INFRINGEMENT. NEITHER SUMMERSAULT NOR ANY OF ITS EMPLOYEES OR AGENTS WILL BE LIABLE FOR ANY DAMAGE THAT CUSTOMER MAY SUFFER ARISING OUT OF USE, OR INABILITY TO USE, ANY SERVICES PROVIDED BY SUMMERSAULT.
7.Limitation of Liability. THE CUMULATIVE LIABILITY OF SUMMERSAULT FOR ANY AND ALL CLAIMS DIRECTLY OR INDIRECTLY RELATED TO, OR ARISING FROM, THE USE OR INABILITY TO USE THE SERVICES PROVIDED BY SUMMERSAULT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THAT TOTAL AMOUNT OF THE RECURRING MONTHLY SERVICE FEES PAID TO SUMMERSAULT FOR SERVICES WITHIN THE PRIOR MONTH. UNDER NO CIRCUMSTANCES WHATSOEVER SHALL SUMMERSAULT HAVE ANY LIABILITY FOR CONSEQUENTIAL, INDIRECT, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES RESULTING FROM LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR ANY OTHER SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF SUMMERSAULT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.Indemnification. Customer agrees to indemnify and hold Summersault and its affiliates harmless from any and all liabilities, costs, and expenses, including reasonable attorneys` fees, related to or arising from (i) any violation of this Agreement, (ii) any violation of the Acceptable Use Policy by Customer or those who access the Services through Customer's account, or (iii) use of the Services through Customers account, including without limitation liabilities resulting from electronic commerce conducted through Customer's account and the placement or transmission of any message, information, software, audio files or other materials on the Internet. In addition, Customer agrees to indemnify Summersault from all liabilities, damages, costs and expenses, including costs of Summersault' labor time, related to or arising from any uploading or modification of an active component by Customer or someone who accesses Customer's account with Summersault, even if such uploading or modification were reviewed by Summersault. Active components include, among other things, an active x-control, installation of a DLL, cold fusion custom tag, perl script or other executable program.
9.Termination. This agreement may be terminated by either party, without cause, by giving the other party 30 days written notice. Notice must be faxed, mailed, or communicated over the telephone. Summersault will not accept terminations by electronic mail. Notwithstanding the above, Customer understands that Summersault reserves the right to terminate Customer's account at any time, for any reason, including, Customer's failure to abide by the terms of this Agreement or the Acceptable Use Policy or Customer's failure to pay any fees or charges when due. If Customer's account is inactivated, Customer may be required to pay reconnect charges and a prepaid deposit in order to reconnect. Customer may not transfer this agreement without the written consent of Summersault.
10.Law and Jurisdiction. Customer understands and agrees the laws of the State of Indiana govern this Agreement and its Summersault account. Indiana courts shall be the exclusive forum for any claim or dispute with Summersault or its affiliates, subsidiaries, employees, contractors, officers, or directors, or relating in any way to Customer's account or use of the Services. Customer agrees to the personal jurisdiction in Indiana in connection with any such dispute.
11.Complete Agreement; No Assignment. This Agreement represents the complete agreement between Summersault and Customer with respect to the subject matter of this Agreement, and supersedes any other written or oral agreement. In the event of any inconsistency between this Agreement and a service order from Summersault the service order shall govern. This Agreement may not be assigned without the consent of Summersault, which will not unreasonably be withheld.
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Customer/company officer authorized signature
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Summersault authorized signature
Official Date of Contract:
Customer Contact:
Summersault Hosting ID:
