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End User Agreement

THIS END USER LICENSE AGREEMENT (“Agreement”) represents the terms and conditions of authorized use between SUMMIT MARKETING, LLC, a California limited liability company (“Summit Marketing”), and the end user registering with Summit Marketing pursuant to this Agreement (“User”, as further described in Section B.1).

A. BASIC CONDITIONS.

1. Product; Service; and the Site.
This Agreement applies to the use of (i) the Summit Marketing website at the SummitMarketingOnline.com domain (together with any natural evolution thereof and any other Summit Marketing URL through which the Products and Services may be directly accessed, the “Site”), (ii) certain Summit Marketing products listed at Exhibit A-1 to this Agreement (“Product”), (iii) certain Summit Marketing services listed at Exhibit A-2 to this Agreement (“Service”), and (iv) any other Summit Marketing website, page, forum, wiki, blog, facilities, services, or capabilities that link to the Site, this Agreement, Product and/or Service. The Site, Product and Service are collectively provided as a service with all associated applications, databases and documentation hosted by Summit Marketing.

2. Compliance with Summit Marketing’s Terms, Privacy Policy and Anti-Spam Policy.
User represents, warrants and covenants that User shall comply at all times with this Agreement and the terms of (i) Summit Marketing’s Privacy Policy, which is available for User’s review at http://Summit Marketing.com/privacy_policy.php and attached as Exhibit A-3 (“Privacy Policy”) and (ii) Summit Marketing’s Anti-Spam Policy, which is available for User’s review at http://Summit Marketing.com/anti_spam_policy.php and attached as Exhibit A-4 (“Anti-Spam Policy”). User agrees that User has read Summit Marketing’s Privacy Policy and Anti-Spam Policy and that the terms of each such policy are reasonable and are acceptable to User as of User’s registration date and upon Accessing the Site, Product and/or Service at any time during the effectiveness of this Agreement. User consents to the use of User’s personal information by Summit Marketing and/or Summit Marketing’s third party contractors in accordance with the terms of, and for the purposes set forth in, the Summit Marketing Privacy Policy. In accordance with Section N.6, such attachments shall automatically be updated upon any modifications to the Anti-Spam Policy and/or the Privacy Policy. In case of any conflict between linked policies and attached policies, the linked version shall control.

3. Compliance with SearchAds Providers’ Terms and Conditions.
User represents, warrants and covenants that User shall comply at all times with the terms of Summit Marketing’s online search advertising services herein, which are provided in partnership with search advertising network providers such as, but not limited to, Google, Yahoo, and MSN (“SearchAds” and, such providers, “SearchAds Providers”). In addition, User represents, warrants and covenants that User shall comply at all times with such SearchAds Providers’ respective terms and conditions for their applicable products, services and websites. User agrees that User has read such terms and conditions, which are reasonable and are acceptable to User as of User’s registration date and upon Accessing the Site, Product and/or Service at any time during the effectiveness of this Agreement.

4. Compliance with LocalSearch Providers’ Terms and Conditions.
User represents, warrants and covenants that User shall comply at all times with the terms of Summit Marketing’s online local business listing services herein, which are provided in partnership with local search and business center listing providers such as, but not limited to, Google, Yahoo, and MSN (“LocalSearch” and, such providers, “LocalSearch Providers”). In addition, User represents, warrants and covenants that User shall comply at all times with such LocalSearch Providers’ respective terms and conditions for their applicable products, services and websites. User agrees that User has read such terms and conditions, which are reasonable and are acceptable to User as of User’s registration date and upon Accessing the Site, Product and/or Service at any time during the effectiveness of this Agreement.

B. REGISTRATION.

1. User Further Defined; User Representative.
As used in this Agreement, “User” refers to the registered organization (or individual person, if a sole proprietor or individual noncommercial user) identified on the Summit Marketing account, and, where applicable, any equity owner, director, manager, officer, employee, independent contractor, and/or agent of the User (each, a “User Representative”) accessing or otherwise using the Site, Product, and/or Service.

2 Accessing the Site.
By clicking the ‘I accept’ button during the registration process, by registering for and/or logging in to User’s Summit Marketing account, or by accessing the Site, Product, and/or Service via any application program interface (API) (such actions, collectively, “Accessing the Site”), User accepts and agrees to this Agreement’s terms and conditions.

3. Authority of User Representative.
Any User employee or other User Representative using Product and/or Service as an employee or agent must (i) have the ability to bind his/her respective employer or principal, User, by using Product and/or Service and (ii) represents that he/she has such authority by Accessing the Site.

4. Registration Information.
To access Product and/or Service, User shall provide information about User and/or the User Representative as part of (i) registration; (ii) adding Product and/or Service features or services; and/or (iii) at Summit Marketing’s request upon Accessing the Site. User shall provide Summit Marketing with certain registration information, all of which must be accurate and updated as appropriate. User is responsible for updating and maintaining an accurate Summit Marketing account profile. By User’s or any User Representative’s Accessing the Site from time to time, User represents, warrants, and certifies that the information contained in the registration form and/or User’s Summit Marketing account profile is accurate, correct, and up-to-date and pertains only to User and/or User’s corporation or other entity.

5. Password & Username.
As part of the registration process, User shall select a username from among available usernames and User shall select a password. User may not (i) select or use, as a username, another person’s or organization’s name with the intent to impersonate that person or organization; (ii) select or use a username in which another person or organization has rights without such person’s or organization’s authorization; or (iii) select or use a username that Summit Marketing, in its sole discretion, deems offensive. Failure to comply with the foregoing shall constitute a breach of this Agreement, which may result in immediate termination or rejection of User’s registration and/or right to use the Site, Product, and/or Service. User acknowledges and agrees that Summit Marketing may (i) require that User change such username and/or password from time to time and (ii) unilaterally assign User a randomly generated password in Summit Marketing ‘s sole discretion by sending such password to User via e-mail or the Site.

6. Security and Confidentiality.
User shall be solely responsible for maintaining the confidentiality of User’s password. User shall immediately notify Summit Marketing of any known or suspected unauthorized use(s) of User’s registration, account profile, username and/or password, or any known or suspected breach of security, including loss, theft or unauthorized disclosure of User’s password. User is responsible for all usage or activity with User’s registration, including any unauthorized use of User’s registration, account profile and/or username.

C. ACCESS TO THE SITE, PRODUCT, AND/OR SERVICE.

1. Purpose For Product and/or Service Use.
User represents, warrants, and covenants that that User (i) is accessing Site, Product and/or Service for User’s own use and that User is not reselling the Site, Product and/or Service to end users, customers or other third parties. User may access and use the Site for the sole purpose of accessing the Product and/or Service on its own behalf as a User. Any other access to or use of the Site, Product and/or Service is unauthorized and prohibited.

2. Login Credentials to the Site, Product and/or Service.
During the registration process, and upon User’s original acceptance of this Agreement by clicking the ‘I accept’ button, User shall select and set account usernames and passwords to be used to access the Site, Product and/or Service. Forgotten usernames may be retrieved by contacting [email protected] and following applicable Site Instructions (defined below). Forgotten passwords can be reset using the forget password link available on the Site and/or Product and following any applicable Summit Marketing instructions.

3. Access Restricted; Unauthorized Access Prohibited.
Only authorized, registered Users are permitted to access and use (i) password-protected or secure areas of the Site and the contents thereof, and (ii) Product and/or Service. The Site, Product and/or Service may include technological protection measures that effectively control or otherwise limit access, reproduction or distribution of information provided. Any attempt (i) at unauthorized access; (ii) to exceed the scope of an existing authorization; or (iii) to circumvent, tamper with or dismantle such technological protection measures is a breach of this Agreement and may be a violation of the Computer Fraud and Abuse Act (18 U.S.C. § 1030), the Digital Millennium Copyright Act (17 U.S.C. § 1201, et seq.) and/or other laws and regulations and may subject the violator to civil and criminal penalties.

4. Access to SearchAds Information.
User acknowledges and agrees that any and all SearchAds created with the Site, Product and/or Service are placed on behalf of User by Summit Marketing to the applicable SearchAds Provider. SearchAds campaigns, ads and all information associated therewith and/or included therein, without limitation, are non-transferable and cannot subsist independently of the Site, Product and/or Service. Summit Marketing shall not be responsible for transferring any such campaigns, ads, or information.

5. Access to LocalSearch Information.
User acknowledges and agrees that any and all LocalSearch listings created with the Site, Product and/or Service are placed on behalf of User by Summit Marketing to the applicable LocalSearch Provider. Local search listings and all information associated therewith and/or included therein, without limitation, is non-transferable and cannot subsist independently of the Site, Product and/or Service. Summit Marketing shall not be responsible for transferring any such listings or information.

D. USE OF THE SITE, PRODUCT, AND/OR SERVICE.

1. Additional User Agreements Regarding Use of the Site, Product and/or Service.
User represents, warrants, and covenants that User: (i) will use the Site, Product and/or Service in accordance with all terms and conditions of this Agreement; (ii) shall comply at all times with this Agreement and Site Instructions available on the Site and/or provided electronically during use of Product and/or Service (“Site Instructions”), including any modifications to this Agreement, the Site, Product and/or Service, and/or the Site Instructions in accordance with Section N.6 of this Agreement; (iii) shall at all times comply with all applicable laws, rules and regulations with respect to User’s use of the Site, Product and/or Service; (iv) in connection with the Site, Product and/or Service, has provided, and shall provide, true, complete and accurate information to Summit Marketing; (v) is over eighteen (18) years of age and (vi) shall not knowingly or otherwise introduce to or through the Site, Product and/or Service any viruses or other items of a destructive nature.

User acknowledges and agrees that User shall (i) use caution and not rely in any way upon the correct functioning and/or performance of Product, Service, and/or the Site and (ii) accept sole responsibility for (a) using any Internet facilities used by User to use the Site, Product and/or Service, (b) conducting any business, advertising, marketing or sales, (c) any negligent or illegal act or omission of User, its agents, contractors, servants, employees, or other users, and (d) safeguarding its data. User acknowledges and agrees that various SearchAds Providers and LocalSearch Providers may offer products and/or services that may be incorporated within the Product, Service and/or the Site that are identified as “BETA”, “AD EXPERIMENT” or are otherwise unsupported by such SearchAds Provider, LocalSearch Provider or Summit Marketing (“BETA Features”).

User acknowledges and agrees that Summit Marketing (i) may append coding, images or other information to email, web pages, and search advertisements in order to support improvements to Product, Service, and/or the Site including, without limitation, tracking, reporting, analytics and diagnostics; and (ii) reserves the right to disapprove, deny and/or terminate any User advertisement at any time, without prior notice. User grants Summit Marketing permission to utilize an automated software program to retrieve and analyze websites associated with the Ad Goals (defined below) for ad quality and serving SearchAds Provider, Summit Marketing and/orUser purposes, unless User specifically opts out of such evaluation in writing to Summit Marketing.

User acknowledges and agrees that any SearchAds created by User within Product and/or Service shall meet the requirements of editorial policies of each applicable SearchAds Provider. User also acknowledges and agrees to fundamental search advertising principles of (i) clearly and accurately representing User’s company message and site and (ii) not engaging in deceptive marketing practices. User understands and agrees that ads may be placed on any content or property provided by any (1) SearchAds Provider and/or (2) Ad Partner (defined below) unless User opts out of an Ad Partner’s placement in the manner specified by the applicable SearchAds Provider. User authorizes and consents to all such placements. User also acknowledges and agrees that the SearchAds Provider and/or Summit Marketing may change keywords used in a SearchAds advertisement or marketing campaign at any time without notice to you.

User understands and acknowledges that third parties may generate impressions or clicks on User’s ads for fraudulent, prohibited and/or improper purposes, and User accepts the risk of any such impressions and/or clicks. Summit Marketing recommends that User pause any SearchAds advertising campaigns, advertisements or other pay-per-click functions if User suspects fraudulent, prohibited and/or improper impressions or clicks. User shall notify Summit Marketing at [email protected] Marketing.com within forty-five (45) days after such fraudulent, prohibited and/or improper use. Summit Marketing reserves the right, in its sole discretion, to file an advertising credit claim with the applicable SearchAds Provider. In the event that Summit Marketing actually receives advertising credit directly attributable to such fraudulent, prohibited and/or improper use in connection with User’s applicable SearchAds campaigns, advertisements, and/or functions, then Summit Marketing will use commercially reasonable efforts to apply such credit received to the respective User account.

User acknowledges and agrees that User is solely responsible for providing accurate information regarding its business as required to submit LocalSearch business listings. User is solely responsible for verification of any and all business listings submitted to Summit Marketing and/or, through Summit Marketing, LocalSearch Providers. Any failure to verify such business listing may result in such User listing not being placed through a LocalSearch Provider.

2. Prohibited Uses, Generally.
No User may (i) take any action that imposes an unreasonable load on the Site’s infrastructure or that of Product and/or Service; (ii) use any device, software or routine to interfere or attempt to interfere with the proper working of the Site, Product and/or Service or any activity being conducted on the Site or regarding Product and/or Service; (iii) attempt to decipher, decompile, disassemble or reverse engineer any of the software comprising or making up the Site, Product and/or Service; (iv) delete or alter any material posted on the Site by any other person or entity; (v) remove, modify, hide or otherwise make unreadable or non-viewable on notice, legend, advice, watermark or other designation displayed at the Site, in Product or Service, or in any information provided; (vi) violate the Anti-Spam Policy and/or the Privacy Policy; (vii) violate this Agreement; or (viii) frame or link to any of the materials or information available from the Site, Product and/or Service.

In using Product and/or Service, User shall not: (i) engage in, facilitate, or further enable unlawful and/or otherwise Objectionable (defined below) conduct; (ii) use Product and/or Service in any way, including, without limitation, any Objectionable way, that harms Summit Marketing or Summit Marketing’s affiliates, resellers, distributors, and/or vendors or any customer of a Summit Marketing party; and/or (iii) use any unauthorized means to modify or reroute, or attempt to modify or reroute, Product and/or Service.

“Objectionable” activities will include, without limitation: activities designed to defame, embarrass, harm, abuse, threaten, stalk, libel, slander and/or harass third parties; activities prohibited by the laws of the United States and/or foreign territories in which User conducts business; activities designed to promote, encourage or provide instructional information regarding unlawful behavior, such as hate crimes, terrorism and child pornography; activities that are tortuous, vulgar, obscene, invasive of the privacy of a third party, racially, ethnically, and/or otherwise objectionable; activities designed to impersonate the identity of a third party; illegal access to other computers or networks (i.e., hacking); distribution of Internet viruses or similar destructive activities; collecting or storing personal data about other users and/or clients of those users; and activities designed to harm or use unethically minors in any way.

3. Prohibited Information Retrieval.
When retrieving information from the Site, Product and/or Service, User is prohibited from (i) using or attempting to use spiders, robots, intelligent agents, or any other extraction or navigation search except for a normal browser or (ii) except as expressly provided in Section E, aggregating, copying or duplicating any of the materials or information available from the Site, Product and/or Service.

E. INTELLECTUAL PROPERTY MATTERS.

1. Grant of License
Subject to the terms, conditions, and restrictions of this Agreement, Summit Marketing grants to User a limited, personal, non-exclusive, non-transferable, non-assignable, non-sublicensable, and revocable license to use the Site, Product and Service as a User until User’s Summit Marketing account is suspended or terminated in accordance with this Agreement.

2. Access and Limited Rights.
User acknowledges and agrees that Product, Service, the Site, marketing content, source code and other patents, copyrights, trademarks, trade secrets and other intellectual proprietary of Summit Marketing (hereinafter, collectively, the “Summit Marketing Proprietary Information”) (i) are “Confidential Information” (defined below); (ii) that such Summit Marketing Proprietary Information is Summit Marketing’s property and Summit Marketing shall retain all right, title and interest in and to the Summit Marketing Proprietary Information; and (iii) that this Agreement shall not be construed to vest in User any rights with respect to such Summit Marketing Proprietary Information except as expressly set forth in this Agreement. No act of downloading or otherwise copying from such Summit Marketing Proprietary Information will transfer title to any such Summit Marketing Proprietary Information contained in Product, Service and/or the Site to User or to any customers or affiliates of User. User shall not (i) download any Summit Marketing Proprietary Information, including, without limitation, marketing content or source code, to retain in hardcopy or on any server, hard drive or via any other means or (ii) use information provided by Product and/or Service other than for noncommercial use or benefit.

3. Improper Use of Summit Marketing Proprietary Information.
Except as expressly authorized by Summit Marketing’s prior written consent, User shall not attempt to create any plug-ins or integrations with the Site, Product and/or Service, replicate, copy, reproduce, transmit, sell, display, distribute, publish, broadcast, circulate, alter, modify, decompile, decode, disassemble, reverse engineer, disseminate, disclose, make derivative works from, or commercially exploit any Summit Marketing Proprietary Information, in whole or in part. User also agrees: (i) not to use the Summit Marketing Proprietary Information for any unlawful purpose and (ii) to comply with any request from Summit Marketing to protect its rights in the Summit Marketing Proprietary Information. User agrees that it will not remove any copyright notice or other notification or trade name or Summit Marketing trademarks that appear in the Summit Marketing Proprietary Information. User agrees that it will not at any time during or after this Agreement assert or claim any interest in or do anything which may adversely affect the validity or enforceability of any Summit Marketing Proprietary Information. User shall not register, seek to register or cause to be registered any Summit Marketing Proprietary Information. Summit Marketing may terminate this Agreement (or any subsequent license agreement with User) immediately without prior notice to User or any User customers and/or affiliates if Summit Marketing has reason to believe that User is undertaking an improper or unauthorized use of the Summit Marketing Proprietary Information.

4. Copyright and Trademark.
The Site, Site Content (defined below), and all other information contained in the Site, Product, and/or Service is the sole property of Summit Marketing and its licensors. Summit Marketing, its affiliates, partners, resellers, and licensors are protected from unauthorized copying and dissemination by United States copyright law, trademark law, international conventions and other intellectual property laws. The Summit Marketing logo, Product names, Service names and other information contained within the Site are registered trademarks of Summit Marketing or its affiliates, partners, resellers, and licensors. The absence of a Product name, Service name, logo or information from the Site does not constitute a waiver of Summit Marketing’s or its licensors’ copyright, trademark or other intellectual property rights concerning that name, logo or information. Except as permitted under a separate written agreement with Summit Marketing, none of the following may be reproduced, republished, repurposed, or distributed, in part or in whole: the Site; Site Content; and websites, password protected products, newsletters, marketing materials and/or content related to Product and/or Service. “Site Content” means all content included on the Site such as text, graphics, logos, button icons, images, audio clips, video clips, digital downloads, and software, but not any such content that was either submitted to Summit Marketing by the User, or any such content that was submitted to Summit Marketing by the User and subsequently modified and/or edited by Summit Marketing or its affiliates, partners, resellers, and licensors.

5. Other Licensing Terms.
Notwithstanding anything to the contrary contained herein, other Summit Marketing websites including, without limitation, password-protected sites, may contain additional licensing terms in addition to or different from this Agreement. To the extent such licensing terms relate to the Site, Product and/or Service, this Agreement shall apply and control in case of conflict between this Agreement and such licensing terms.

6. User Content on the Site, Product and/or Service – Ownership.
User represents and warrants, with respect to any and all User Content (defined below) that (i) User either (a) has copyrighted, trademarked or patented such User Content or (b) has legal permission to use such User Content; and (ii) it is free of any copyright-, patent-, or trademark-restricted information, including, without limitation, text, images, videos, and music violating associated license restrictions. “User Content” means all postings, messages, text, files, images, photos, videos, sounds, or other materials posted by User on, transmitted through, or linked from the Site, Product and/or Service, including, without limitation, content in connection with search advertising, that is (i) submitted, loaded, posted, and/or displayed by User into Product and/or Service or (ii) submitted to Summit Marketing by User for submission, loading, posting, and/or display in connection with Product and/or Service. User Content includes, without limitation, (i) ad targeting options and keywords (“Ad Targets”), (ii) all ad content, ad information and ad URLs (“Creativity Items”), whether or not generated by or for User, and (iii) websites, services and landing pages to which viewers are linked or directed by Creativity Items, and advertised services and products (collectively “Ad Goals”).

7. User Content on the Site, Product and/or Service – Use.
By submitting, loading, posting, and/or displaying User Content, User hereby grants Summit Marketing (and, through Summit Marketing, to SearchAds Providers and LocalSearch Providers in accordance with such SearchAds Providers’, LocalSearch Providers’ and their respective Partners’ standard terms and conditions, as applicable) a perpetual, irrevocable, royalty-free, and non-exclusive license (including, without limitation, any copyright, trademark, patent, publicity or other rights) to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any User Content submitted, posted or displayed on or through Product, Service, and/or the Site. Any User Content provided by User may be used by Summit Marketing, such SearchAds Providers, LocalSearch Providers and their respective Partners without charge, for business purposes including, without limitation, delivering Product and/or Service and hosting, caching, routing, transmitting, storing, copying, modifying, distributing, performing, displaying, reformatting, excerpting, analyzing, and creating algorithms from and derivative works of such User Content in connection with this Agreement.

User Content shall comply with content restrictions regarding email messages, web pages, search advertising and associated activities using Product and/or Service as set forth in this Agreement, the Anti-Spam Policy and the terms of any SearchAds Provider and/or LocalSearch Provider used in connection with such User. User Content shall accurately and in a non-deceptive manner identify User’s organization and User’s product or service; User shall not provide any User Content that is deceptive or misleading in using Product and/or Service. Summit Marketing’s formatting requirements and policies with respect to formatting User Content are subject to change at any time without prior notice.

User is entirely responsible for all User Content posted, emailed or otherwise made available through the Site, Product and/or Service. Summit Marketing does not control, and is not responsible for, User Content made available through the Site, Product and/or Service. Therefore, User, and third parties may be exposed to User Content (or the User Content of other Users) that is Objectionable. Summit Marketing does not pre-screen or approve User Content; however, Summit Marketing has the right, but not the obligation, to refuse, delete or move, in its sole discretion, any User Content that is available through the Site, Product and/or Service. User must evaluate any and all User Content and, accordingly, bears all risks associated with use of User Content. Summit Marketing shall not be liable in any way for any User Content or for any loss or damage of any kind resulting from use of User Content.

User understands, acknowledges and agrees that, notwithstanding any rights of Summit Marketing hereunder, Summit Marketing’s SearchAds Providers and LocalSearch Providers have rights associated with their respective terms and conditions including, without limitation, (i) program policies regarding advertising/listing cancellation (which may require that User pay for SearchAds or LocalSearch despite advance notice of cancellation), (ii) cancellation of any insertion order or service agreement between Summit Marketing and such SearchAds Provider or LocalSearch Provider, (iii) termination of any SearchAds Provider’s advertising program(s); (iv) termination of any LocalSearch listing and/or (v) rights to ensure validity of User’s listing information submitted to LocalSearch Providers.

8. User Submissions to Summit Marketing.
Summit Marketing encourages User to provide feedback to Summit Marketing to better the Product and/or Service and, specifically, provide results and feedback regarding installation, testing, evaluation and User’s use. Any feedback provided by User may be used by Summit Marketing, without charge, for business purposes including, without limitation, improving deliverability of Product and/or Service. Except as User and Summit Marketing may agree in a separate written agreement, material, communications, content, remarks, suggestions, ideas, graphics, or other information that User transmits to Summit Marketing through the Site with respect to the Site, Product, and/or Service (each, a “Submission”) shall be neither confidential nor proprietary to User. Any such Submission will be treated in accordance with Summit Marketing’s Privacy Policy. User hereby grants to Summit Marketing the royalty-free, perpetual, irrevocable, worldwide, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, and display all Submissions, and to incorporate any Submission in other works in any form, media, or technology now known or later developed, for the purpose of delivering Summit Marketing’s services on behalf of User. Summit Marketing may use any Submission in its business (including, without limitation, for products or advertising) without incurring any liability for royalties or any other consideration of any kind, whatsoever. Summit Marketing will not incur any liability as a result of any similarities that may appear in future Summit Marketing operations.

9. Summit Marketing Headquarters and Server Locations.
Summit Marketing’s headquarters is located at 9299 E. Stockton Blvd. #40 Elk Grove, CA 95624. Summit Marketing maintains the Site primarily through servers located in Fremont, California, U.S.A.

F. PAYMENT.

1. Subscription; Monthly Fees; Automatic Renewal.
Access to the Site, Product and/or Service is subject to monthly subscription fees (“Monthly Fee”). Summit Marketing will directly charge User Monthly Fees for User’s access to the Site, Product and/or Service. All Monthly Fees are non-refundable and must be paid in advance. User hereby authorizes Summit Marketing to charge all Monthly Fees for User’s access to the Site, Product and/or Service as a month-to-month subscription, automatically renewing each month, until valid termination of User’s Summit Marketing account, with Monthly Fees applying on the anniversary date of initial registration each month while this Agreement is in force. Ongoing hosting fees will continue automatically at the end of User’s subscription until such time as Summit Marketing receives a cancellation in accordance with Section L.

2. Charges for Online Search Advertising Services.
Using Product and/or Service functionality associated with SearchAds and SearchAds Providers requires that User initialize, and replenish from time to time, a SearchAds account to permit payments in advance to SearchAds Providers in exchange for SearchAds placements during such Budget Periods (defined below) having a value nearly equal to the Budgeted Amount (defined below).

User shall budget User’s desired advertising funds (the “Budgeted Amount”) within 10-day, 20-day, or 30-day pay-per-click budget period for SearchAds (the “Budget Period”). Summit Marketing will charge User for the entire Budgeted Amount on the first day of each applicable Budget Period as requested by User within the User’s SearchAds payment module on the Site. Summit Marketing will allocate the Budgeted Amount evenly across the entire Budget Period for its duration; the single-day Budgeted Amount will be the “Daily Budgeted Amount”. Once the remaining balance of the Budgeted Amount falls below the Daily Budgeted Amount with respect to any advertising request, User authorizes Summit Marketing to replenish the applicable SearchAds account by charging the Budgeted Amount to User’s applicable designated payment account(s) before the commencement of the next applicable Budget Period.

Keywords requested by User must abide by applicable SearchAds Provider guidelines. Keywords include a key word and a location; key words alone, without a location, may require a higher subscription level or a price increase for User’s applicable SearchAds package. If any applicable Budgeted Amount does not cover pricing attributable to specific keywords used in SearchAds, such keywords will be removed automatically from the list of SearchAds keywords selected. Summit Marketing is not responsible for the increase in the cost-per-click of any keyword terms; User acknowledges that, unless User increases the applicable Budgeted Amount accordingly, User will ultimately receive fewer SearchAds during the current Budget Period and any future Budget Periods affected by such increase.

All such SearchAds fees are non-refundable and must be paid in advance. User hereby authorizes Summit Marketing to charge a User-designated Budgeted Amount for all SearchAds fees in connection with User’s applicable SearchAds account. Such amount will automatically renew each month until valid termination of User’s Summit Marketing account or a change in the designated amount. Ongoing search advertising fees (including, without limitation, SearchAds Fees) will continue automatically at the end of User’s subscription until such time as User cancels its Summit Marketing account in accordance with Section L. Any balance remaining in the SearchAds account shall carry over, and may be applied, to the following calendar month.

3. Additional Charges.
Additional charges will apply to any access to the Site, Product and/or Service beyond that level of access granted by the Monthly Fees and SearchAds fees, including any additional paid feature(s) User chooses to include during the term of this Agreement. All such additional charges shall be non-refundable and must be paid in advance. Advanced access to Product and/or Service or other services not included in Product and/or Service will be subject to monthly subscription fees in addition to the Monthly Fees.

4. Payment; Payment Information; Taxes.
User is responsible for all fees and charges incurred with User’s Summit Marketing account and/or SearchAds account, including all applicable Monthly Fees, SearchAds fees, LocalSearch fees, sales tax, use tax, delivery charges, SearchAds Provider fees, LocalSearch Provider fees, credit card transaction fees, Internet access fees and associated hardware fees or costs to access Product and/or Service. User is responsible for providing accurate payment information for a (i) valid, unexpired, and below-maximum-balance credit card in good standing (i.e., credit card number; expiration date; card identification (CID) number) and keeping its Summit Marketing account current. Use of Product and/or Services is limited to any applicable account limits. Each User must be authorized to use payment methods provided.

To the fullest extent permitted by law, User waives all claims relating to charges, unless claimed within sixty (60) days after the charge (this right does not affect User’s credit card issuer rights). Notwithstanding the foregoing, User’s sole right regarding claims for charges based on suspected fraudulent, prohibited and/or improper clicks and/or impressions in connection with SearchAds or otherwise are set forth in Section D.1. All payments of Monthly Fees, and any other payments payable pursuant to this Agreement, must be made in United States Dollars. If Summit Marketing is required to pay sales, use, property, value-added, withholding and/or other taxes, or similar fees associated with User’s use of the Site, Product and/or Service (not including taxes based on Summit Marketing’s net income or payroll), then such taxes and/or fees shall be billed to and paid by User. Nothing in this Agreement obligates Summit Marketing to extend credit to any User.

Although User may suspend/“pause” or deactivate SearchAds or other SearchAds campaigns at any time by notifying Summit Marketing through the Site and/or Product and following all Site Instructions, such suspension, pause or deactivation shall not be effective until the applicable Budget Period has concluded. Budgeted Amounts are non-refundable.

5. Charges Subject to Change; Audit.
Subject to the terms and conditions of this Agreement, User acknowledges that all prices, discount rates, and other fees (including, without limitation, Monthly Fees, SearchAds fees, SearchAds Provider fees, reactivation fees, LocalSearch fees and LocalSearch Provider fees) are subject to change. User agrees to pay charges consistent with Summit Marketing’s most current pricing terms for User to access the Site, Product and/or Service; including, without limitation, Monthly Fees, SearchAd fees and charges for any products and/or services offered through the Site, Product and/or Service by Summit Marketing, any SearchAds Provider, and/or any other vendor or service provider. Summit Marketing may at any time, in its sole discretion, audit User’s license to ensure compliance with Summit Marketing’s then-current pricing terms and this Agreement.

6. Termination for Nonpayment.
Summit Marketing may suspend or cancel User’s access to the Site, Product and/or Service for any failure to pay in full and/or to pay on time. Summit Marketing has no obligation to permit or support any free access to the Site, Product and/or Service, whatsoever. User is responsible for paying any and all past due amounts, late charges and all costs incurred to collect such amounts including, without limitation, reasonable attorneys’ fees before access to the Site, Product and/or Service is reinstated.

7. Late Charges.
Summit Marketing may assess late charges upon past due amounts including, without limitation, amounts past due because the applicable payment information and/or method has become invalid; such late charges shall be at the rate of 1.5% per month of the average outstanding balance due, or the highest rate of interest permitted by applicable law, whichever is less. User agrees to pay Summit Marketing’s costs, including attorneys’ fees and third party collection agent costs, required to enforce the terms and conditions of this Agreement and the collection of any and all past due amounts in connection with the Site, Product and/or Service.

8. Third Party Collection of Past Due Amounts; Use of Account Information.
Summit Marketing may use a third party collection agent for enforcement and collection activities, along with any other legal action that Summit Marketing may take to pursue such monies owed. User acknowledges and agrees that the information provided to, or contained in such User’s Summit Marketing account, LocalSearch listing and/or SearchAds account may be used by Summit Marketing and/or any third party collection agent in any administrative or legal proceeding to collect any monies owed by User to Summit Marketing.

9. Refunds.
To the fullest extent permitted by law, refunds, if any, are at Summit Marketing’s sole discretion and shall only be in the form of a credit for SearchAds fees and/or Monthly Fees each at Summit Marketing’s sole option.

G. SUPPORT SERVICES; TRAINING; SALES OF PRODUCT AND/OR SERVICE.

1. Product and Service Description.
The Site, Product and Service are inclusive of the training information, updates and corrections, and associated documentation, Site Instructions, Site Content, source code, programming, databases and user interfaces (“UI”) provided by Summit Marketing to User. All information contained and presented within Product and/or Service including, without limitation, (i) Site Instructions, (ii) Site Content, (iii) email campaign, keyword and website reports, (iv) SearchAds advertising campaigns is Summit Marketing’s sole intellectual property (except to the extent it is (a) owned by Summit Marketing’s licensors or (b) User Content).

2. Technical Changes, Corrections and Improvements.
The Site, Product, Service, the URL associated with Product and/or Service, and other technical and/or access information may change; any updates will be provided promptly by Summit Marketing. Summit Marketing reserves the right to make improvements, corrections, adaptations, conversions, and/or any other change to the Site, Product and/or Service. Summit Marketing makes no commitment to provide corrections, updates, maintenance, enhancements or other improvements to Product and/or Service. User acknowledges and agrees that any training, assistance, support materials, services and associated documentation provided shall be at Summit Marketing’s sole discretion. Product, in whole or in-part, shall not be moved from User’s physical or Internet location without written authorization from Summit Marketing.

3. Marketing Materials.
Summit Marketing may, at its sole discretion, provide Summit Marketing materials to User, including, without limitation, marketing materials, but Summit Marketing does not warrant the accuracy of such materials.

4. No Warranties Without Consent.
Summit Marketing does not, and User shall not, without the prior written consent of an authorized Summit Marketing representative, extend any representations, warranties or guarantees to any third parties, whatsoever, including with respect to Product, Service, the Site and/or any features or benefits of using Summit Marketing.

5. SearchAds Sales Process.
Summit Marketing will present User with SearchAds advertisements and associated selected keywords online through Site, Product and/or Service functionality prior to placing SearchAds advertisements with SearchAds Providers. Only upon User’s preview and approval will such SearchAds advertisement be placed with the SearchAds Provider and uploaded into such Provider’s applicable network, in which it shall be subject to the SearchAds Provider’s terms and conditions and approvals. Many SearchAds Providers have monitoring periods of up to 72 hours during which they may approve a User submission for online advertising. User may suspend/”pause” or deactivate SearchAds campaigns through the Site and/or Product by following all Site Instructions; any such suspension, pause or deactivation shall not be a termination or suspension of this Agreement under Section L.

Such SearchAds Provider may, through Summit Marketing, send a notice pursuant to which User may modify keywords and settings as posted for a limited time; the ad, whether or not so modified by User, shall be deemed approved by User in all respects upon the conclusion of the period referenced in such notice. User acknowledges and agrees that all placements of User’s ads shall conclusively be deemed to have been approved by User unless User produces contemporaneous documentary evidence showing that User disapproved such placements in the manner specified by Summit Marketing and/or the applicable SearchAds Provider.

H. RESELLER CLIENT.

If User is the client of a Summit Marketing-authorized reseller of Product and/or Service (“Reseller”) pursuant to a “Reseller Agreement”, then:

1. Reseller is Authorized to Act on User’s Behalf.
User acknowledges and agrees that Reseller is hereby permitted to act on User’s behalf as a User Representative in all instances under Section B.1 for all purposes under this Agreement, including, without limitation, payment authorizations under Section F. Summit Marketing may rely upon User’s grant of authority to Reseller as a User Representative for all purposes under this Agreement.

2. User is Jointly and Severally Liable with Reseller.
User acknowledges and agrees that (i) User is jointly and severally liable with Reseller with respect to this Agreement, including, without limitation, indemnification under Section I, and, (ii) consequently, Summit Marketing may proceed with respect to any matter against User, Reseller, or both, in Summit Marketing’s sole discretion.

3. Summit Marketing’s Right to Seek Additional Authorization.
User acknowledges and agrees that Summit Marketing shall have the right, but in no event shall have any obligation, to request from User further evidence of authority acceptable to Summit Marketing, in Summit Marketing’s sole discretion, of any User Representative (including any Reseller acting in the capacity of a User Representative hereunder) and their authority to act on User’s behalf for all purposes of this Agreement. Summit Marketing shall have no liability whatsoever with respect to any periods during which User’s account may be suspended (including, without limitation, Monthly Fee reimbursement) or any action is taken or not taken in connection with User’s Summit Marketing account occurring during periods in which Summit Marketing has requested such additional evidence of authority and such request is unfulfilled.

4. No Access to Reseller Accounts.
User acknowledges and agrees that User shall not be permitted access to any Reseller Summit Marketing account or information of any Reseller, including, without limitation, content owned by a User that is located on, or used solely in connection with, a Summit Marketing account to which User has not been permitted access by such Reseller.

5. User Content Ownership by User or Reseller.
User acknowledges and agrees that User’s right, title, and/or interest in or to User Content vis-à-vis any Reseller using the same or similar content shall be determined solely with reference to any agreements or understandings between User and Reseller and shall not rely upon the contents of this Agreement and/or any Reseller Agreement. Each of User and Reseller shall jointly and severally indemnify, defend and hold all Summit Marketing Parties (defined below) harmless from and against any loss, liability, claims, demands, damages and expenses, including, without limitation, legal and professional fees, whatsoever, related to User’s, Reseller’s and/or any third party’s claims of any right, title and/or interest in or to such User Content.

6. Reseller Control of Login Information.
User acknowledges and agrees that, notwithstanding the generality of Section C.2, in connection with any agreement between Reseller and User, Reseller may retain sole control and/or knowledge of some portion of or all of User’s applicable Summit Marketing login information and details. In such event, Summit Marketing shall not be required to provide any such User login information to User; however, Summit Marketing may provide such User login information in its sole discretion.

7. Entire Agreement.
Notwithstanding the generality of Section N.1, in the event of any conflict between this Agreement and any Reseller Agreement, Summit Marketing shall determine which agreement shall control in its sole discretion. User acknowledges and agrees that Summit Marketing is not a party to any agreement between User and Reseller.

8. Payments to Reseller.
Notwithstanding the generality of Section F, if and to the extent that an agreement between User and Reseller requires that User pay Monthly Fees, SearchAds Fees and/or other fees associated with this Agreement to such Reseller rather than directly to Summit Marketing, then the payment terms of such agreement between User and Reseller shall control; provided, however, that Summit Marketing reserves the right to seek repayment and impose other remedies directly against User (in addition to Reseller) in the event that Reseller breaches any of its applicable payment obligations to Summit Marketing and User has not paid Reseller in full in addition to any other remedies Summit Marketing may have.

I. LIMITATION OF LIABILITY; LIMITATION OF DAMAGES.

To the maximum extent permissible under the law, neither Summit Marketing nor its members, investors, managers, officers, employees, agents, subcontractors, affiliates, resellers, distributors, telecommunications and/or network service providers, licensors and/or vendors (the “Summit Marketing Parties”) shall be liable to User in contract, tort or otherwise or for any damages, including without limitation, direct, indirect, special, lost profit, punitive, incidental or consequential damages, arising out of or in connection with this Site or the use of Product and/or Service, even if advised of the possibility of such damages. User and/or third parties respectively assume sole responsibility for use of the Site, Product and/or Service.

Summit Marketing Parties’ liability arising out of any kind of legal claim, whether in contract, tort or otherwise, in any way connected with the Site, Product and/or Service or any use thereof is limited to the aggregate amounts actually paid by User to Summit Marketing in connection with such claim.

J. DISCLAIMERS OF WARRANTIES.

THE SITE, INCLUDING ALL PRODUCT, SERVICE, CONTENT, SOFTWARE, DATA, CHANNEL ENABLEMENT MATERIALS, BETA FEATURES AND OTHER INFORMATION MADE AVAILABLE THEREON OR ACCESSED BY MEANS THEREOF, IS PROVIDED BY SUMMIT MARKETING TO USER ON AN “AS IS”, “AS AVAILABLE”, “WHERE IS”, AND “WITH ALL FAULTS” BASIS. SUMMIT MARKETING DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE FOLLOWING:
(1) WARRANTIES OF PERFORMANCE, QUALITY, ACCURACY, COMPLETENESS, CURRENCY OF DATA OR INFORMATION, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE;
(2) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE, COMPATIBILITY, SECURITY, ACCURACY OR NON-INFRINGEMENT;
(3) WARRANTIES THAT THE FUNCTIONS CONTAINED IN OR THAT ACCESS OR USE OF THE SITE, PRODUCT AND/OR SERVICE SHALL BE UNINTERRUPTED, AVAILABLE, ACCESSIBLE, TIMELY, SECURE, LEGAL, VALID, STABLE, COMPLETE, CURRENT AND/OR ERROR-FREE;
(4) WARRANTIES THAT THE SITE, PRODUCT AND/OR SERVICE WILL MEET USER’S REQUIREMENTS;
(5) WARRANTIES THAT DEFECTS OR INACCURACIES SHALL BE CORRECTED;
(6) WARRANTIES THAT THE SITE, PRODUCT AND/OR SERVICE SHALL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY;
(7) WARRANTIES THAT THE SITE, PRODUCT AND/OR SERVICE WILL GENERATE SALES INCREASES, BUSINESS ACTIVITY, PROFITS OR ANY OTHER FORM OF BUSINESS IMPROVEMENT; AND/OR
(8) WARRANTIES THAT THE SITE, PRODUCT AND/OR SERVICE, INCLUDING THE SERVERS ON WHICH THEY ARE OPERATED, ARE FREE OF VIRUSES, “WORMS,” “TROJAN HORSES,” OR OTHER HARMFUL, CONTAMINATING, OR DESTRUCTIVE COMPONENTS.

IN ADDITION, SUMMIT MARKETING, FOR ITSELF AND ON BEHALF OF ITS SEARCHADS AND LOCALSEARCH PROVIDERS, DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, REGARDING (1) BETA FEATURES; AND (2) POSITIONING, LEVELS, QUALITY, OR TIMING OF (I) COSTS PER CLICK; (II) CLICK-THROUGH RATES; (III) AVAILABILITY AND/OR DELIVERY OF ANY IMPRESSIONS, CREATIVITY ITEMS AND/OR AD TARGETS ON ANY OTHER CONTENT OR PROPERTY PROVIDED BY A THIRD PARTY (“AD PARTNER”) UPON WHICH SUCH SEARCHADS PROVIDER PLACES ADS AND/OR CONTENT OR PROPERTY PROVIDED BY SUCH SEARCHADS PROVIDER, OR SECTION THEREOF; (IV) NUMBER OF CLICKS; (V) CONVERSIONS OR OTHER RESULTS FOR ANY ADS OR AD TARGETS; (VI) THE ACCURACY OF DATA PROVIDED (E.G., REACH, SIZE OF AUDIENCE, DEMOGRAPHICS, OR OTHER PURPORTED CHARACTERISTICS OF AUDIENCE); (VII) EXPOSURE OF USER’S BUSINESS AND/OR KEYWORDS; (VIII) THE ADJACENCY OR PLACEMENT OF ADS WITHIN ANY PROGRAM, THE SITE, PRODUCT AND/OR SERVICE; (IX) THE PLACEMENT OF ANY LOCALSEARCH LISTING; AND/OR (X) THE RANKING ATTRIBUTED TO ANY LOCALSEARCH LISTING.

USE OF AND ACCESS TO PRODUCT, SERVICE AND/OR THE SITE (AND CONTENTS, SOFTWARE, DATA, CHANNEL ENABLEMENT MATERIALS, AND OTHER ASSOCIATED INFORMATION) ARE AT USER’S SOLE RISK (AND, TO THE EXTENT APPLICABLE, ANY OTHER THIRD PARTY’S SOLE RISK). USER’S (AND ANY OTHER THIRD PARTY’S) SOLE REMEDY AND, EXCEPT AS EXPRESSLY SET FORTH IN SECTION I, SUMMIT MARKETING’S SOLE LIABILITY WITH RESPECT TO THE USE, OPERATION OR PERFORMANCE OF THE SITE, PRODUCT AND/OR SERVICE IS FOR USER TO TERMINATE USE OF THE SITE, PRODUCT AND/OR SERVICE.

K. INDEMNIFICATION.

User using the Site, Product and/or Service agrees to indemnify, defend and hold all Summit Marketing Parties harmless from and against any loss, liability, claims, demands, damages and expenses, including, without limitation, legal and professional fees, related to (i) use of Product, Service, and/or the Site, even if access to Product, Service, and/or the Site was shared with a third party for their use; (ii) User’s breach of the terms of this Agreement, the Privacy Policy and/or the Anti-Spam Policy; (iv) User Content; and/or (v) User’s misconduct or violation of the rights of any third person.

L. EFFECTIVENESS, TERM AND TERMINATION.

1. Generally.
This Agreement is effective when Summit Marketing accepts User’s offer to enter into this Agreement and activates User’s password and shall continue in full force and effect for so long as User continues in good standing under all of the terms and conditions of this Agreement unless earlier terminated or suspended. Access to Product and/or Service is granted pursuant to the terms of this Agreement and is subject to prepayment of Monthly Fees, SearchAds fees, and any additional fees as set in Section F. User may terminate a Summit Marketing account in accordance with this Agreement by contacting Summit Marketing support by email or in writing.

2. Termination By User.
User may terminate its access to the Site, Product and/or Service by providing 30 days prior written notice to Summit Marketing (to the address set forth in this Agreement or to [email protected] There are no refunds for any fees paid including, without limitation, Monthly Fees and SearchAds fees. Upon termination, User must remove and terminate User’s respective access to the Site, Product and Service in its entirety. USER IS RESPONSIBLE FOR TERMINATING ITS ACCOUNT AND THIS AGREEMENT, AND MAKING ARRANGEMENT FOR THE TRANSFER OF ALL USER WEBSITES AND CONTENT TO ANOTHER SERVICE PROVIDER PRIOR TO THE EFFECTIVE TERMINATION DATE; SUMMIT MARKETING IS NOT RESPONSIBLE FOR ANY FAILURE BY USER TO DO SO; ANY CHARGES RESULTING FROM FAILURE TO PROPERLY TERMINATE THIS AGREEMENT ARE NOT REFUNDABLE.

3. Suspension, Termination, or Deactivation of User’s Access to the Site, Product and/or Service.
Summit Marketing reserves the right to suspend, change, limit, terminate, remove, cancel or cease to provide access to the Site, Product and/or Service at any time, in whole or in part, without notice, for any reason, temporarily or permanently. Summit Marketing has no obligation to monitor use of the Site, Product and/or Service, but reserves the right to review User’s use of the Site, Product and/or Service and to cancel access to the Site, Product and/or Service in its sole discretion if User is using the Site, Product and/or Service, as determined by Summit Marketing in its sole discretion, in association with spam or Objectionable activities. Any breach of this Agreement constitutes grounds for immediate termination of this Agreement and/or termination or suspension of User’s access to the Site, Product and/or Service.

For any reason and at any time, (including, without limitation, as a result of actions taken by User breaching this Agreement or otherwise in association with unlawful content, spam or Objectionable activities, as determined or designated by Summit Marketing in its sole discretion) either in general or with respect to any one or more particular uses of the Site, Product and/or Service or groups thereof (including, without limitation, for any improper use or failure to comply with this Agreement), Summit Marketing reserves the right to (a) deactivate or suspend User’s access to and/or use of the Site, Product and/or Service and/or (b) terminate this Agreement and/or Product and/or Service provided to User, in connection with the Site or otherwise. Such termination shall not affect any right to relief to which Summit Marketing and its affiliates may be entitled, at law or in equity. Upon termination of this Agreement, all rights granted to User will terminate and revert to Summit Marketing and its affiliates, as applicable.

If User fails to make any payment to Summit Marketing, including, without limitation, Monthly Fees and/or SearchAds Fees, then, as part of Summit Marketing’s payment terms, User’s account will be suspended until payment in full has been received and User has paid a reactivation fee of $299 to Summit Marketing. If there is no payment after ninety (90) days with respect to any such Monthly Fees and/or SearchAds Fees (or any other Summit Marketing fees payable in installments), the User’s account shall be cancelled and the account will not be subject to any refund whatsoever. Cancelled accounts may not be reactivated and any account history or information in such accounts may not be retrievable.

4. Discontinuation of Product and/or Service Use.
If User discontinues use of Product and Service, User shall (i) cease all Product and/or Service use and, (ii) upon Summit Marketing’s request, User shall promptly destroy or return all Confidential Information and any materials associated with Product and/or Service (including all copies). In each case, User shall so certify in writing upon Summit Marketing’s request. After discontinuation of the Service, User will have ongoing ownership of their website, blog, social media profiles, and videos created by Summit Marketing. No other Summit Marketing content or campaigns may be used, distributed, or resold after discontinuation of the Service.

M. COPYRIGHT INFRINGEMENT NOTIFICATION; COUNTER-NOTIFICATION.

1. Copyright Infringement Notification.
To file a copyright infringement notification with Summit Marketing, the copyright owner must send a written communication (via email to: [email protected]) including substantially the following (please consult your legal counsel or see Section 512(c)(3) of the Copyright Act to confirm these requirements):

(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material. Providing URLs in the body of an email is the best way to help Summit Marketing locate content quickly.
(iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Please note that, under Copyright Act Section 512(f), any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability for damages. Please also note that the information provided in this legal notice may be forwarded to the person who provided the allegedly infringing content. Claimant information will be published on the Site in place of disabled Site Content.

2. Counter-Infringement Notification.
If you elect to send Summit Marketing a counter notice, please email [email protected] for further instructions.
(i) Please note that under Copyright Act Section 512(f), any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.
(ii) Please also be advised that Summit Marketing enforces a policy that provides for the termination in appropriate circumstances of Users who are repeat infringers.

N. GENERAL PROVISIONS.

1. Entire Agreement.
Subject to any terms and conditions set forth in the Site Instructions, User acknowledges and agrees that this Agreement including, without limitation, the policies and agreements it incorporates by reference (including, without limitation, the Anti-Spam Policy and the Privacy Policy) constitute the complete and only Agreement, and supersede any and all prior agreements, promises, representations, and negotiations between the parties, including terms or conditions on any other prior purchase arrangement between User and Summit Marketing regarding Product, Service, and/or the Site.

2. Notices.
User agrees that, except as expressly provided herein, all notices (except for notices concerning breach of this Agreement) from Summit Marketing may be posted within Product and/or Service, and/or on the Site. Notices from Summit Marketing to User concerning breach may be sent to the email address, and/or via certified mail to the postal address, provided in Site, Product and/or Service registration. Any notices from User to Summit Marketing shall be made by email to [email protected] and/or sent via certified mail to the postal address provided on the Site.

3. Force Majeure.
Performance by Summit Marketing under this Agreement shall be extended or excused if any such failure to perform is the direct or indirect result of any occurrence beyond Summit Marketing’s control including, without limitation, strikes, labor troubles, Summit Marketing’s inability to access the Site, technical difficulties of any kind, riots, floods, fires, earthquakes, storms and other natural disasters, accidents, failure of production, supply, transportation or delivery of raw materials or the materials covered by this Agreement.

4. Hyperlinked Sites.
The Site may contain links and pointers to other sites on the Internet which may be maintained by third parties websites, resources, affiliates, partners, resellers, licensors, or sponsors of the Site. Such links do not constitute an endorsement by Summit Marketing of any third-party site or any materials contained therein. Summit Marketing does not control, verify, warrant, endorse, or take responsibility for, the availability, accuracy, completeness, safety, reliability, authenticity including, without limitation, privacy policy, currency or access to the information contained in such third-party sites or any information, content, products or services accessible from such third-party sites. Summit Marketing is not liable for any damage or loss caused by or in connection with use of or reliance on any such sites. User acknowledges that information, documents, and images on any such site may contain inaccuracies or other errors. Any suggested corrections may be submitted to [email protected]

5. Site Discontinuation and Modification.
Summit Marketing may, at any time, with or without notice: (i) interrupt, modify, suspend or discontinue the Site, Product and/or Service or any functionality and/or portion of any of them, including the availability of any area or all of the Site and/or (ii) remove Site Content and/or User Content. Summit Marketing may impose limits on certain features and services or restrict User’s access to parts of Site or the entire Site without any notice or liability. Summit Marketing also reserves the right to change, alter or improve, at any time with or without notice: (i) the Site, or any portion thereof; (ii) any Site Content; (iii) any User Content; (iv) Product; and/or (v) Service.

6. Amendments; Modifications; Changes; Updates.
User acknowledges and agrees that Summit Marketing may amend, modify, change and/or update this Agreement, the Privacy Policy, the Anti-Spam Policy, the Site Instructions, Site Content, Product and/or Service and/or any other information contained on the Site at any time, with or without notice, and User accepts such modifications, changes and/or updates upon Accessing the Site. User’s sole right with respect to dissatisfaction with any modifications pursuant to this provision, or any policies or practices of Summit Marketing in providing the Site, Product and/or Service, including, without limitation, modifications to the amount or type of fees associated with the Product and/or Service, is to terminate User’s use in accordance with this Agreement.

7. Governing Law; Venue; Jurisdiction.
This Agreement shall be deemed entered into within the State of California. The laws of the State of California shall govern the interpretation, adjudication and disputes arising from or related to this Agreement. If a dispute arises as to enforcement, interpretation or implementation of this Agreement, the parties herein consent to personal jurisdiction in the State of California and venue in the United States District Court located in such state. The United Nations Convention on the International Sale of Goods shall not apply.
8. Severability.
If one or more of the provisions or portions of the provisions of this Agreement is declared invalid, void, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions or portions of the provisions contained herein shall remain effective and binding, and shall not be affected or impaired thereby.

9. Assignment.
User may not assign this Agreement. Nothing in this Agreement, express or implied, is intended to confer upon any third party any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement. User may not grant clients, affiliates, subsidiaries, customers or successors-in-interest any right to use Product, Service, and/or the Site hereunder without Summit Marketing’s express prior written consent, which may be withheld in Summit Marketing’s sole discretion, and which may result in an increase in charges. Any such attempted assignments, delegations or other transfers will be null and void. Summit Marketing may assign or transfer this Agreement to any entity which is a successor to Summit Marketing’s interest, whether by merger, asset acquisition or otherwise in Summit Marketing’s sole discretion.

10. Summit Marketing Not Fiduciary.
Summit Marketing is not agent, fiduciary, trustee or other representative to or on behalf of any User.

11. No Third Party Beneficiaries.
Nothing expressed or mentioned in or implied from this Agreement is intended or shall be construed to give to any third party any legal or equitable right, remedy or claim under or in respect to this Agreement; all of the representations, warranties, covenants, conditions and provisions hereof are intended to be and are for the sole and exclusive benefit of Summit Marketing and its Users.

12. No Waiver.
Summit Marketing’s failure to enforce the strict performance of any provision of this Agreement will not constitute Summit Marketing’s waiver of its right to subsequently enforce such provision or any other provisions of this Agreement.

13. Independent Contractor Relationship.
User agrees that its relationship with Summit Marketing is as an independent contractor and that neither entity is an employee, servant, agent or joint venturer of the other. Neither entity may assume or create any obligation or responsibility, including, without limitation, a contractual or license obligations, on behalf of or in the name of the other.

14. Survival.
Upon termination of this Agreement, any provision which, by its nature or express terms should survive, will survive such termination or expiration for any reason whatsoever, including, without limitation, provisions regarding privacy, ownership of intellectual property, indemnification, disclaimers of warranties and limitations of liability.

15. Most Recent Version.
This Agreement was last revised on March 31, 2011.

Copyright © 2011 Summit Marketing, LLC. All Rights Reserved.

EXHIBIT A-1

Product: Summit Marketing’s Online Marketing Suite, provided as Software-as-a-Service (SaaS), with all associated applications, databases and Documentation hosted by Summit Marketing at the Site.

Versions: The specific versions of Product and its associated applications and databases, including, without limitation, the beta and current versions of the Product, used by Summit Marketing in connection with providing and supporting the Services pursuant to the terms of this Agreement and applicable (i) Maintenance Releases; (ii) Upgrades; and (iii) Documentation for such Versions.

Maintenance Release: Any successor or replacement programs providing substantially the same functionality as the current Product or Version thereof, as the case may be.

Upgrade: Upgrade means a new Product edition other than Maintenance Releases, including enhancements and modifications that constitute error corrections or other modifications to the Product, Versions or the Documentation, as applicable.

Documentation: Documentation includes, but is not limited to, functional specifications, user manuals, flow diagrams and file descriptions related to the Product and Versions thereof, whether or not expressly set forth in this Agreement.

EXHIBIT A-2

Service: Services provided by Summit Marketing associated with the User’s Product use, including, without limitation, facilitating: (i) web site creation and management, (ii) local search engine directory submissions, including, without limitation, SearchAds, (iii) email campaigns, (iv) advertising programs , and (v) analytics associated with the Site, Product and/or Service utilization. Notwithstanding the generality of the foregoing, User acknowledges and agrees that Summit Marketing may (i) withdraw or cease providing any such Service, (ii) enhance, modify or change any such Service, and/or (iii) provide any additional Service, at any time and for any reason.

Copyright © 2011 Summit Marketing, LLC. All Rights Reserved.

EXHIBIT A-3

Summit Marketing’s Anti-Spam Policy

Anti-Spam Policy

SUMMIT MARKETING, LLC, a California limited liability company (“Summit Marketing”) has adopted this NO TOLERANCE ANTI-SPAM POLICY (“Anti-Spam Policy”) against unsolicited commercial email messages (“Spam”) to which each User shall adhere in connection with Accessing the Site (as each term is hereinafter defined). Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in Summit Marketing’s License Agreement (“License Agreement”).

This Anti-Spam Policy applies to the use of the Summit Marketing website at the Summit Marketing.com domain (together with any natural evolution thereof and any other Summit Marketing URL through which the Products and Services may be directly accessed, the “Site”), certain Summit Marketing products listed at Exhibit A-1 to the BTLA (“Product”), certain Summit Marketing services listed at Exhibit A-2 to the License Agreement (“Service”), and any other website, page, forum, wiki, blog, facilities, services, or capabilities that link to the Site, this Anti-Spam Policy, the License Agreement, Product and/or Service.

As used in this Anti-Spam Policy, “User” refers to the registered organization (or individual person, if a sole proprietor or individual noncommercial user) on the account, including any User, and, where applicable, any equity owner, director, manager, officer, employee, independent contractor, and/or agent of the User (each, a “User Representative”) accessing or otherwise using the Site, Product, and/or Service.

By clicking the ‘I accept’ button during the registration process, by logging in to User’s Summit Marketing account, or by accessing the Site, Product, and/or Service via any application program interface (API) (such actions, “Accessing the Site”), User accepts and agrees to the Anti-Spam Policy’s terms and conditions. User acknowledges and agrees that Summit Marketing may modify, change and/or update the Anti-Spam Policy at any time, with or without notice, and User accepts such modifications, changes and/or updates upon Accessing the Site.

Any employee or other User Representative using Product and/or Service as an employee must have the ability to bind their respective employer and/or User by using Product and/or Service and represents that they have such authority by Accessing the Site.

The CAN-SPAM Act of 2003 (Controlling the Assault of Non-Solicited Pornography and Marketing Act), 15 U.S.C. 7701-7713, as amended from time to time (“CAN-SPAM”) went into effect on January 1st, 2004 and preempts all state laws. Final regulations associated with CAN-SPAM were issued on May 23, 2008 and are set forth at 16 C.F.R. Part 316. While this new law will not stop Spam, it does make most Spam illegal and ultimately less attractive to spammers. The law is specific about requirements to send commercial email and empowers both state and federal governments to enforce the law. The penalties can include a fine and/or imprisonment for up to 5 years.

Summit Marketing enforces a NO TOLERANCE policy against Spam and may actively monitor import lists and emails generated for large numbers of contacts. Although Summit Marketing has no obligation to monitor User’s use of the Product and/or Service, Summit Marketing may do so. Any use of the Product and/or Service to develop, create, send or otherwise transmit Spam, as determined at Summit Marketing’s sole discretion, constitutes a violation of this Anti-Spam Policy and Summit Marketing may, in its sole discretion and without any notice to User: (i) immediately terminate User’s ability to Access the Site or otherwise use the Site, Product and/or Service; (ii) block such emails; and (iii) remove content contained in such emails. In addition, Summit Marketing may consider emails employing the following to be Spam: (i) false or misleading information in the subject line of email; (ii) false or misleading information in email headers (the “to” or “from” lines); and/or (iii) non-specific, generic recipient addresses (such as [email protected]). User may email Summit Marketing directly at [email protected] if User becomes aware of any Spam being sent by User, any User Representative, or any other entity.

User agrees that all email lists provided by User are lists for which all listed parties have consented to receive correspondence from User (“Permission Based Lists”) in connection with User’s use of Product and/or Service. In general, Summit Marketing does not consider email that is sent in compliance with standard permission-based email guidelines, including opt-out guidelines, to be Spam.

Every email message sent by User in connection with Product and/or Service must contain the Summit Marketing “unsubscribe” link that allows the recipient to remove themselves from User’s mailing list. Certain features of the Product and Service, including the “unsubscribe” feature, are designed to restrict and protect from sending Spam; however, the Product and Service may not protect against all methods by which Spam is created. User acknowledges and agrees that not all email messages sent through use of Product and/or Service will be received by the intended recipients of such email.

By acceptance of this Anti-Spam Policy, User agrees that User will, as part of any emails sent within or in connection with Product and/or Service: (i) only use Permission Based Lists; (ii) never sell or rent User’s lists to anyone else without explicit permission; (iii) both include, and honor within ten days after notice, standard opt-out or “unsubscribe” actions, including, without limitation, removal from User’s contact lists; (iv) identify, accurately and in a non-deceptive manner, User’s organization, User’s product or service, and physical address and not provide any deceptive or misleading content regarding the overall subject matter; and (v) include a valid physical address, which may be a valid post office box address meeting the registration requirements established by the United States Postal Service. User agrees that User is the sole or designated “sender” (as such term is defined in CAN-SPAM and the regulations adopted under such act) of any email message sent by User using Product and/or Service.

Copyright © 2011 Summit Marketing, LLC. All Rights Reserved.

EXHIBIT A-4

Summit Marketing’s Privacy Policy

Privacy Policy

SUMMIT MARKETING, LLC, a California limited liability company (“Summit Marketing”) has adopted this Privacy Policy (“Privacy Policy”) to ensure respect for, and protect the privacy of, Summit Marketing’s customers, users and visitors to which each User shall adhere in connection with Accessing the Site (as each term is hereinafter defined). Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in Summit Marketing’s License Agreement (“License Agreement”).

This Privacy Policy applies to the use of the Summit Marketing website at the Summit Marketing.com domain (together with any natural evolution thereof and any other Summit Marketing URL through which the Products and Services may be directly accessed, the “Site”), certain Summit Marketing products listed at Exhibit A-1 to the BTLA (“Product”), certain Summit Marketing services listed at Exhibit A-2 to the License Agreement(“Service”), and any other website, page, forum, wiki, blog, facilities, services, or capabilities that link to the Site, this Privacy Policy, the License Agreement, Product and/or Service.

As used in this Privacy Policy, “User” refers to the registered organization (or individual person, if a sole proprietor or individual noncommercial user) on the account, including any User, and, where applicable, any equity owner, director, manager, officer, employee, independent contractor, and/or agent of the User (each, a “User Representative”) accessing or otherwise using the Site, Product, and/or Service.

By clicking the ‘I accept’ button during the registration process, by logging in to User’s Summit Marketing account, or by accessing the Site, Product, and/or Service via any application program interface (API) (such actions, “Accessing the Site”), User accepts and agrees to the Privacy Policy’s terms and conditions. User acknowledges and agrees that Summit Marketing may modify, change and/or update the Privacy Policy at any time, with or without notice, and User accepts such modifications, changes and/or updates upon Accessing the Site.

Any employee or other User Representative using Product and/or Service as an employee must have the ability to bind their respective employer and/or User by using Product and/or Service and represents that they have such authority by Accessing the Site.

Summit Marketing, its affiliates, partners, resellers, and licensors, respect and protect the privacy of Summit Marketing’s customers, users and visitors to the Site. The following discloses information about Summit Marketing’s collection and usage practices for Summit Marketing’s website www.Summit Marketing.com and related Product and/or Service provided within the Summit Marketing.com domain. Summit Marketing’s Site may contain links to other websites, but Summit Marketing is not responsible for the privacy practices of other websites or companies. Information collected on the Site is the sole property of Summit Marketing. Summit Marketing will not sell, share, or rent this information to others in ways different from what is disclosed in this statement.

1. Data Collection and Use.
Summit Marketing operates globally with its primary data center located in Fremont, California, U.S.A. Summit Marketing will transfer certain information provided by affiliates, partners, resellers, licensors, registrants, and customers to the appropriate office, agent or consultant in order to deliver products and services requested by Summit Marketing’s clients. Summit Marketing may collect, process, use and transfer personal information directly from User when the User voluntarily enters information which may include User’s email address, Internet domain, IP address, full name, title, company affiliation, and other contact information during the registration process. Additionally, use of Summit Marketing websites may also result in data being collected, processed and transferred as part of the standard electronic greeting between User’s computer, the network, and Summit Marketing’s servers and typically consists of network routing information, equipment (browser) information, web or application logs, and query for “cookies” previously set by Summit Marketing to facilitate log-in or improvements to the usability of Product and/or Service. Cookies collected may include the following information: a unique identifier, user preferences, website activity and profile information and cannot be used to run programs or intentionally deliver viruses to User’s computer. User’s web browser may be set to alert User when a cookie is being used, to accept or reject the cookie, or to disable the cookie feature entirely. User acknowledges that taking any of these steps to modify the use of placement and query for cookies may limit functionality of Product and/or Service.

Summit Marketing currently uses the information collected for the purposes of providing User with information or access to Product and/or Service requested, providing a personalized Product and/or Service experience, and to allow User to participate on a voluntary basis in future communications from Summit Marketing including, without limitation, Product and/or Service updates, information and alerts, company information, or event notifications. Summit Marketing may also disclose personal information, without notice, if required to do so by law or in the good faith belief that such action is necessary to comply with legal process served on Summit Marketing or protect and defend Summit Marketing’s property rights in and to its products, or the security or safety of its users and Site. Summit Marketing will not rent, share, sell or use any User information, or information provided by User, with any other User of Summit Marketing’s services, nor will Summit Marketing rent, share, sell or use any information provided by User with any third parties outside of the scope of Summit Marketing’s services or when required by law.

2. Security.
Summit Marketing takes security measures to protect the confidentiality and security of User’s personal information by deploying best practices in security safeguards including, without limitation, firewalls, data encryption, and backup and recovery, to protect User’s information from unlawful processing, accidental loss, destruction or unauthorized alteration. Any sensitive account information such as credit card numbers is protected in its transmission through the standard use of the Secure Socket Layer (SSL) protocol to a third-party merchant services entity; credit card information is not stored in Summit Marketing’s servers. User’s personal information may be stored in Summit Marketing’s application or web servers and in Summit Marketing’s customer management system and retained for a reasonable period of time or as long as the law requires.

3. Choice/ Preference/ Opt-Out.
This registration additionally allows visitors, users, customers of the Site to opt-in to Summit Marketing’s mailing list. Registered users may opt-out of receiving future mailings at any time by altering or updating their profile (accessible within Product and/or Service). Exceptions to this opt-out ability may include updates, patches, enhancements, downloads, contract or license agreement information, and customer service information related to currently licensed products, security related information, training event notifications, and transactional information, but notice will always be provided in such communications. User may email Summit Marketing directly at [email protected] If User believes that it has received an unsolicited commercial email from Summit Marketing on behalf of any of Summit Marketing’s affiliates, partners, resellers, licensors, registrants, or customers, User may report it to Summit Marketing at [email protected]

Copyright © 2011 Summit Marketing, LLC. All Rights Reserved.