Summit Marketing a service of Summit Marketing LLC. (Herein “Summit Marketing”) Terms & Conditions Agreement
Cancel at Any Time:
If for any reason your are not satisfied with the services provided, you may cancel at any time. No refunds are given for the current service month.
Last updated: 3/8/2016
- Service Provider = Summit Marketing and/or its Parent Company Owner, User, You,
- Your = You, The paying Customer.
- Fees = the Setup Fees, Recurring Fees and Non-Recurring Fees
- Initial Term = that period of time commencing upon the Service Commencement Date and ending approximately 1 calendar year afterwards.
- Non-Recurring Fees = those fees set forth on the Service Order that are due when and if a particular Service is utilized, such as additional bandwidth used by you during the term of this Agreement.
- Recurrence Period = the recurring period upon which you agree to pay for the Services as set forth in the Service Order, typically 1 calendar year. Example: May 5th of current year to May 4th of next year.
- Recurring Fees = those fees set forth on the Service Order that are due on a recurring basis throughout the term of this Agreement upon each Recurrence Period.
- Renewal Term = the subsequent renewal of the Initial Term or any Renewal Term, commencing upon expiration of such Initial Term or Renewal Term and ending upon expiration of the Service Contract period set forth on the Service Order.
- Service Commencement Date = that date upon which you are given access by Service Provider to begin using the Services.
- Service Level Agreement = the Summit Marketing Service Level Agreement as such agreement may be amended from time to time by Service Provider.
- Services = those services requested by you and provided by Service Provider as set forth on a Service Order.
- Setup Fees = mean those fees set forth on the Service Order that are due upon the Service Commencement Date and represent the initial fees necessary to initially setup and configure the Services.
- Support = means the online technical support provided by Service Provider in connection with the Services.
- Service Order = means the agreement of Service Provider to provide a service or services to You for a fee. This may take the form of a pre-defined ‘service plan’ offered by Service Provider, or a any fee based service defined and agreed to by both parties via email or support ticket.
Service Provider has the right to monitor the Website, and in its sole discretion to remove any content that Service Provider finds objectionable for any reason, without prior notice to Owner. This includes but is not limited to: Pornography, Spamming, Phishing Scams, Illegal business practices, any material infringing on National or International Copyright.
Website Owner is solely responsible for any liability arising out of or related to the Web Site. Owner agrees to indemnify and hold Service Provider harmless from and against any and all liabilities, losses, damages, costs, and expenses, including reasonable attorney fees and experts’ fees, associated with any claim or action brought against Service Provider related to or arising out of the Web Site or Owner’s breach of its warranties under this Agreement.
Service Provider owns and retains full rights to any code/programs or software purchased or developed for or by Service Provider. You own all the content you placed into the website product or service, assuming it was original and does not infringe on existing copyrights.
Any software used in website product or service released under the General Public License (GPL) is governed by such. Service Provider reserves the right to modify and/or change these terms and conditions at any time.
Confidential Information means all confidential and proprietary information of a party disclosed either before of after the effective date of this Agreement and marked as such (if such information is capable of being so marked) regarding such party’s products and business that are disclosed by such party (the “Disclosing Party”) to the other party (the “Non-Disclosing Party”) under this Agreement including, but not limited to, the Disclosing Party’s intellectual property. Confidential Information also includes (a) the unpublished prices and other terms of service, audit and security reports, data center designs and other proprietary technology and (b) all information transmitted to or from, stored on or otherwise processed by the servers or other devices used in the provision of the Services. Confidential Information does not include information: (i) in the public domain at the time of delivery, (ii) subsequently published or otherwise made part of the public domain through no fault of the Non-Disclosing Party or its representatives, (iii) in the Non-Disclosing Party’s possession at the time of disclosure and not acquired by the Non-Disclosing party directly or indirectly from Disclosing Party or its representatives on a confidential basis, (iv) which becomes available to the Non-Disclosing Party on a non-confidential basis from a source not under an obligation of confidentiality to the Disclosing Party, or (v) information that is independently developed without reference to the Confidential Information, as evidenced by written records maintained in the ordinary course of business.
Service Provider Obligations
Subject to your compliance with all of the terms and conditions of this Agreement, Service Provider shall provide the Services and Support to you during the term of this Agreement in accordance with the commitments made in the Service Level Agreement. In the event of a failure by Service Provider to meet the obligations defined within the SLA, your sole and exclusive remedy and Service Provider’s sole obligation are the issuance of Service Credits as set forth in the Service Level Agreement.
Service Provider And Beyond
Summit Marketing offers Managed and Curated Services. However, if you add any 3rd party software to an account/site that breaks the site, Service Provider is not liable to fix the site under the managed service contract. Service Provider, may at its option, help you remove 3rd party plugins for a fee. Service Provider retains the right to audit such code for performance and security concerns and allow or disallow at our sole discretion.
Client Roster & Client Trademark Usage
By using this service you grant host permission and a royalty-free license to list or display applicable trademarked name(s) and logo in Service Provider’s client roster and in other forms of advertising. This license will terminate upon the end of the ‘Term’ as described below.
Discount for Powered by SM Logo
Some of Summit Marketing’s services such as website hosting, Email marketing, etc. display a Powered by SM logo. This is unobtrusive and designed to fit neatly with virtually all websites. A discount of $250 per month is included in exchange for displaying the logo.
Your initial invoice will include any Setup Fees and the Recurring Fees from the Service Commencement Date until expiration of the Recurrence Period. Thereafter, Service Provider will invoice you in advance for the Recurring Fees and in arrears for the Non-Recurring Fees at the beginning of each Recurrence Period.
The Recurring Fees set forth in the Service Order shall remain fixed during the Initial Term. Upon commencement of any Renewal Term, the Recurring Fees for the Services shall be adjusted to the published fees then in-effect at the date of such renewal.
Payment terms are ‘due on receipt’.
You shall be responsible for and shall pay, and shall reimburse Service Provider on request if Service Provider is required to pay, any sales, use, value-added or other tax (excluding any tax that is based on Service Provider’s net income), assessment, duty, tariff, or other fee or charge of any kind or nature that is levied or imposed by any governmental authority on the Services.
You must notify Service Provider in writing of any disputed Fees within fourteen (14) days of the invoice date for such Fees. If you do not notify Service Provider within such period, you have waived any right to dispute such amounts, either directly or indirectly or as a set-off, or defense in any action or efforts to collect amounts due to Service Provider.
Suspension of Services
IN THE EVENT SERVICE PROVIDER TAKES ANY ACTION PURSUANT TO THIS SECTION, IT SHALL HAVE NO LIABILITY TO YOU OR ANYONE CLAIMING BY OR THROUGH YOU. Nothing herein shall preclude Service Provider from pursuing other remedies available by statute or otherwise permitted by law.
The “Term” will refer to the time period between the Service Commencement Date, and the date your service is terminated. Unless otherwise noted, our services are offered on monthly and annual contract basis. We do not require multi-year contracts to take advantage of our services. Annual contracts auto-renew on the service expiration date. We require notification of cancellation per the Termination / Cancellation section of this agreement.
For annual contracts, you may cancel service at anytime during the first 30 days of use by following our published cancellation procedure. For monthly contracts that do not incorporate an annual term, you may cancel your service at any time. Your service will cancel/terminate within 3-4 days after following this procedure. This will allow you some time to gather your content, transfer for your service before the site is removed from our system. NOTE: For month to month services, copyrights for any custom design and content work created for you during the billing year will transfer to you upon the completion of a 12 month period. Should you cancel before the end of a 12 month billing period, you will be required to pay the pro-rated outstanding amount for custom work completed on your behalf at our then prevailing rates for copyright transfer to occur. NO COPYRIGHT IS EVER TRANSFERRED OR GRANTED FOR ANY DESIGNS, IMAGES, OR CONTENT THAT ARE A PART OF Summit Marketing SHARED LIBRARIES. ADDITIONALLY, ALL CUSTOM DESIGN WORK COMPLETED BY Summit Marketing MUST MAINTAIN APPROPRIATE “DESIGNED BY Summit Marketing” WITH A BACKLINK TO HTTP://SUMMITMARKETINGONLINE.COM IN PERPETUITY FOR AS LONG AS THAT DESIGN IS UTILIZED.
Because we offer a convenient cancellation policy, if you are dissatisfied with our services, you may cancel at any time. No other refunds shall be provided except as governed by our Service Level Agreement.
No refunds are provided for early termination of services.
Termination for Breach
Expiration of termination of this Agreement shall not relieve your requirement to pay Fees for Services provided prior to the effective date of termination.
Changes to Service
Any changes to the Services during the Term of this Agreement will result in a new Service Order and new agreement. Any unused payments under this Agreement shall be credited toward the new agreement.
Service Provider may from time to time conduct routine tests, maintenance, upgrade or repair on any part of the network, and Service Provider shall use commercially reasonable efforts to give you prior notice thereof. You acknowledge that there may be instances where it is not practicable for Service Provider to give advance notice of a disruption, for example, in the event of an emergency, and Service Provider shall be entitled to disrupt the Services to conduct restoration and remedial works without prior notice.
Each party will safeguard and keep confidential all Confidential Information of the other and will return the other’s Confidential Information upon request, except to the extent further retention of such Confidential Information is necessary for a party to perform any post-termination obligations or exercise any post-termination rights under this Agreement. Each party agrees to safeguard the other’s Confidential Information using measures that are equal to the standard of performance used by the Non-Disclosing to safeguard its own Confidential Information of comparable value, but in no event less than reasonable care. Neither party will use any Confidential Information of the other party for any purpose except to implement its rights and obligations under this Agreement and as otherwise expressly contemplated by this Agreement; provided, however, that if any party or its representatives is requested or required to disclose any Confidential Information by a subpoena or court order, that party will promptly notify the other party (unless prohibited by such subpoena or order) of such request or requirement so that the other party may seek an appropriate protective order or other appropriate relief and/or waive compliance with provisions of this Agreement, and if, in the absence of such relief or waiver hereunder, any party or its representative are, in the opinion of its counsel, legally compelled to disclose Confidential Information, then that party may disclose so much of the Confidential Information the person compelling disclosure as is, according to such opinion, required, without liability hereunder.
Limitation of Liability, Guarantee, Warranty:
Conditions: Plain spoken pre-amble…
- All services are guaranteed to be flawed in some manner, since they have all been conceived by humans, constructed, sold, and implemented by humans, and humans are incapable of perfection. Therefore, we can safely guarantee the realistic possibility that anyone can suffer loss as a result of using Service Provider’s services. We therefore warn and guarantee that some such loss can/will occur from the use of these services, simply due to its human design and implementation. Instructions and training for use may have been insufficient and flawed as well.
- We herewith notify users that there are no implied warranties, and none are to be assumed to exist for damage, injury, or loss resulting from use or in any other relation to the services. We herewith also notify the undersigned that by using these services they will accept full responsibility for any loss arising from, or in conjunction with, the Service Provider’s services. Services will only be delivered to individuals, businesses, or organizations who will accept these responsibilities. All others who are not willing to take on such responsibility need not leverage the services. This document is intended to render lawsuits virtually impotent.
- Absence of perfection in humans is no accident, it is guaranteed, because we humans lack perfection by law of nature, and could, by all reason, not be held responsible for such lack of perfection in anything we do or make.
- If any of the above subject matter is ruled to be illegal in any court of law, in which the validity of this document may be contested, any resulting partial invalidation of this document shall not invalidate the remainder of the rights, duties, and stipulations contained herein.
Service Provider represents that it shall provide the Services in compliance with its Service Level Agreement. EXCEPT FOR THIS WARRANTY, Service Provider AND ITS LICENSORS DISCLAIM ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED RELATING TO THE SERVICES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. Service Provider SPECIFICALLY DISCLAIMS ANY WARRANTY THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. FURTHER, Service Provider MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, AND SHALL HAVE NO LIABILITY WHATSOEVER, WITH RESPECT TO THE ACCURACY, DEPENDABILITY, PRIVACY, SECURITY, AUTHENTICITY OR COMPLETENESS OF DATA TRANSMITTED OVER THE INTERNET, OR ANY INTRUSION, VIRUS, DISRUPTION, LOSS OF COMMUNICATION, LOSS OR CORRUPTION OF DATA, OR OTHER ERROR OR EVENT CAUSED OR PERMITTED BY OR INTRODUCED THROUGH THE INTERNET OR THE SERVERS UPON WICH THE SERVICES ARE PROVIDED. YOU ARE SOLELY RESPONSIBLE FOR IMPLEMENTING ADEQUATE FIREWALL, PASSWORD AND OTHER SECURITY MEASURES TO PROTECT YOUR SYSTEMS, DATA AND APPLICATIONS FROM UNWANTED INTRUSION, WHETHER OVER THE INTERNET OR BY OTHER MEANS.
EXCEPT FOR SERVICE PROVIDER’S GROSS NEGLIGENCE OR WILFULL MISCONDUCT, SERVICE PROVIDER’S AND ITS LICENSOR’S CUMULATIVE LIABILITY TO YOU AND ALL OTHER PARTIES FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE USE OF THE SERVICES OR ANY FAILURE OR DELAY IN DELIVERING THE SERVICES SHALL NOT EXCEED THE TOTAL FEES PAID BY YOU DURING THE PERIOD OF THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE CLAIM OCCURRED OR THE PRORATA EQUIVALENT IF THE RECURRENCE PERIOD IS ANNUAL. EXCEPT TO THE EXTENT SET FORTH IN THE SERVICE LEVEL AGREEMENT, Service Provider SHALL HAVE NO LIABILITY SHOULD THERE BE ANY DELAY IN THE PROVISION OF THE SERVICE.
SERVICE PROVIDER AND ITS LICENSORS SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR OTHER INDIRECT DAMAGES, OR FOR LOST PROFITS OR LOST DATA ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICES OR ANY DATA SUPPLIED THEREWITH OR ANY FAILURE OR DELAY IN DELIVERING THE SERVICES, EVEN IF Service Provider HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ACKNOWLEDGE AND AGREE THAT UNDER NO CIRCUMSTANCE SHALL Service Provider ASSUME ANY LIABILITY OR RESPONSIBILITY TO YOU FOR SUSPENSION OF SERVICE TO THE EXTENT PERMITTED BY THIS AGREEMENT.
Service Provider shall defend, indemnify and hold you, your affiliates or any of your or their respective employees, agents or suppliers, harmless from and against any and all costs, liabilities, judgments, actions, losses and expenses (including, but not limited to, reasonable attorneys’ fees and fees of experts) (collectively, “Losses”) arising out of any threatened or actual claim, suit, action, arbitration or proceeding (collectively, “Claims”) by any third party arising out of or relating to (i) Service Provider’s gross negligence or willful misconduct or (ii) a claim that the Services as provided by Service Provider under this Agreement infringe upon the United States patent or copyright of a third party; provided that (a) you give Service Provider prompt written notice of the claim, (b) you permit Service Provider sole control over the defense and settlement of the claim and (c) you reasonably cooperate with Service Provider in the defense and or settlement of the claim.
You shall defend, indemnify and hold Service Provider, its affiliates or any of its respective employees, agents or suppliers, harmless from and against any and all Losses arising out of or relating to (i) your gross negligence or willful misconduct or (ii) your violation of the Acceptable Use Policy or the law; provided that (a) Service Provider gives you prompt written notice of the claim, (b) Service Provider permits you sole control over the defense and settlement of the claim and (c) Service Provider reasonably cooperates with you in the defense and or settlement of the claim. Your obligation under this Section 15 include claims arising out of acts or omissions by your employees, Users and any other person who gains access to the Services as a result of your failure to use reasonable security measures.
Ownership of Intellectual Property; Software; Hardware and IP Addresses
Each of us shall retain all right, title and interest in and to each party’s respective intellectual property rights, including without limitation, all patents, inventions, trademarks, copyrights and trade secrets. Any intellectual property used, developed or otherwise reduced to practice in providing the Services to you shall be the sole and exclusive property of Service Provider and/or its licensors, unless we specifically agree in writing otherwise.
You acknowledge and agree that you do not acquire any ownership interest in any of the servers or other hardware used to provide the Services hereunder. Similarly, we do not acquire any ownership interest in the content or data that you store on the servers or transmit via the Services.
You acknowledge and agree that third party software and hardware are used in the provision of Services. Accordingly, you agree to abide by the terms and conditions of any end user licenses or other agreements relating to the use of such hardware or software.
You acknowledge and agree that any IP addresses that Service Provider may assign to you in connection with the Services are registered to and owed by Service Provider and upon any expiration or termination of this Agreement, you agree to release and cease using any such IP addresses.
Non-Solicitation. During the term of this Agreement and for a period of one (1) year thereafter, you shall not solicit or hire the services of any employee or subcontractor of Service Provider without the prior written consent of Service Provider.
Force Majeure. Service Provider shall not be deemed to be in breach of this Agreement and shall have no liability hereunder if its obligations are delayed or prevented by any reason of any act of God, war, terrorism, fire, natural disaster, accident, riots, acts of government, shortage of materials or supplies, failure of any transportation or communication system, non-performance of any of your agents or your third party providers (including, without limitation, the failure or performance of common carriers, interchange carriers, local exchange carriers, internet service providers, suppliers, subcontractors) or any other cause beyond its reasonable control.
Notice of Claim and Filing of Suit. You must present any claim in writing to Service Provider within a reasonable time, and in no event longer than sixty (60) days after the event for which the claim is presented so as to permit the parties to attempt to resolve the claim. No action may be maintained against Service Provider under this Agreement, unless timely written claim has been given as provided above.
Notices. Except to the extent that notices may be sent by electronic mail as specifically set forth in this Agreement, notices under this Agreement will be sufficient only if (i) mailed by certified or registered mail, return receipt requested, (ii) sent by internationally recognized overnight carrier or (iii) personally delivered. Notices shall be deemed delivered upon receipt by the other party. Notices to you shall be sent to the address set forth on the Service Order. Notices to Service Provider shall be sent to:
Survival. The provisions of Sections 1, 12, 13, 14, 15, 16 and 17 shall survive any termination or expiration of this Agreement.
You acknowledge that you have the authority to enter in to this Agreement on behalf of your company and that you may authorize other individuals to purchase additional services. This Agreement binds any of your authorized users, as well as your heirs, executors, successors, and assigns.
This Agreement may not be assigned by you without the prior written consent of Service Provider, which shall not be unreasonably withheld or delayed.
Governing Law; Jurisdiction. This Agreement is governed by the laws of the State of California, excluding its conflicts of laws principles. You hereby submit to the exclusive jurisdiction of the federal and state courts of the State of California; provided, however, that Service Provider shall have the right to institute judicial proceedings against you or anyone acting by, through or under you, in other jurisdictions in order to enforce Service Provider’s rights hereunder through reformation of contract, specific performance, injunction or similar equitable relief.
General. This Agreement, together with the Service Level Agreement, any other documents referenced herein and any amendments between the parties, constitutes the entire understanding between Service Provider and you with respect to subject matter hereof. Terms and conditions as set forth in any purchase order which differ from, conflict with, or are not included in this Agreement, shall not become part of this Agreement unless specifically accepted by Service Provider.