Internet Hosted Services Schedule 01.01.2014 - 06.30.2019

Version 2019 (01.01.2014 - 06.30.2019)

IMPORTANT – These Terms of Service (the “Terms”), together with any applicable Order(s) (defined below), constitute the entire agreement (the “Agreement”) between the entity or listed in the Order(s) as the “Customer” and CareServ Technologies, LLC as the “Host” with respect to the services listed herein. For your convenience and records, we suggest that you print and retain or save a copy of this agreement.

Services

Services. Host agrees to perform and provide to Customer services (collectively, the “Services”) consisting of (i) electronic access to a digital information processing, transmission and storage system (“Server”) to store, host and, if indicated on the Order(s) (defined below), backup the Customer Content (defined below) and the associated website(s), electronic mail program(s), virtual private server(s), file site(s) and similar programs or sites (collectively, the “Site”) described in one or more Order(s); (ii) making the Site available on demand by Customer to Customer’s end users via the global computer communications network (“Internet”) as set forth herein; and (iii) providing technical support to Customer with respect thereto as described in Section 3(c). Except as may be otherwise agreed to by the parties in an addendum to this Agreement, the Services shall not include any e-commerce or transaction processing services. Details pertaining to the Services provided hereunder shall be set out in Host’s standard ordering document(s) referencing these Terms (each an “Order”). Completed Orders will be binding only when signed by both parties or when transmitted to Host by Customer and acknowledged and accepted in writing (including electronically) by Host. The parties may enter into additional Orders for additional Services from time to time.
Host Materials. In connection with performance of the Services, Host may make available to Customer and certain of Customer’s end users certain materials, including, without limitation, software (in object code or source code form), development tools or utilities necessary to operate and maintain the Site, data, documentation or information developed or provided by Host or its suppliers under this Agreement (collectively, the “Host Materials’).
Customer Content
1. Except as otherwise expressly provided in this Agreement, as between the parties, Customer shall be solely responsible for providing, updating, uploading and maintaining the Site and any and all files, pages, data, works, information or materials on, within, displayed, linked or transmitted to, from or through the Site or the Services, including, without limitation, trade or service marks, images, photographs, illustrations, graphics, audio clips, video clips, email or other messages, the content of any bulletin boards or chat forums, metatags, domain names (including those provided by Customer or registered on behalf of Customer in connection with the Services) and text, and further including all updates, upgrades, modifications and other versions of any of the foregoing, other than the Host Materials (“Customer Content”). As between the parties, Customer will manage, renew, create, delete, edit and otherwise control the Customer Content. Customer agrees that it is the sole responsibility of Customer to ensure that the information it and third parties (including, without limitation, Customer’s end users) accessing the Internet through Customer’s use of the Services complies with all applicable laws and regulations and the Host’s Acceptable Use Policy (the “AUP”), available at http://www.careservtech.com/legal/, which may be updated by Host from time to time and which are incorporated herein by this reference. Host may change the web site address for the AUP upon electronic notice to Customer. Customer agrees that it has received, read and understands the current AUP.
2. Customer further agrees that, to the extent applicable to Customer, it will (x) maintain a Designated Agent for takedown notices pursuant to the terms of the Digital Millennium Copyright Act of 1998 (“DMCA”); (y) take expeditious action to remove from the Site and the Services allegedly infringing material contained in the Customer Content and of which it actually becomes aware; and (z) respond and act expeditiously to Hosts’ requests with respect to any network abuse, actual or potential violations of the AUP and actions needed to be undertaken for Customer’s or Host’s compliance with the DMCA, including, without limitation, promptly providing Host with any end user information requested by Host, to the extent known to or held by Customer. Without limitation of the foregoing, Host will have the right to remove, without prior notice to Customer, any Customer Content that, in Host’s sole opinion, does not comply with the AUP or could otherwise subject Host to potential liability. Host will use reasonable efforts to notify Customer following any removal of any Customer Content from the Hosting Service’s network.
3. In the event that any virus or destructive element is found in or furnished with any Customer Content, Customer will use best efforts, upon learning that such situation exists, to eliminate immediately the virus or destructive element. Customer will notify Host as to the existence of any such virus or destructive element immediately upon discovery thereof, and Host will have the right to take any steps it deems necessary to eliminate the virus or destructive element and to be reimbursed by Customer for its costs relating to any such commercially reasonable steps.
4. Host will implement reasonable and appropriate technical and organizational measures in accordance with the standards generally prevailing in the internet hosting industry to help secure the Customer Content against accidental or unlawful loss, access, or disclosure and will maintain a disaster recovery plan in effect at all times during the term of this Agreement. Customer agrees that the obligations of Host under this Section 1(a)(iv) are (x) Host’s only responsibility with respect to the security and handling of Customer Content, except as otherwise required by applicable law or as otherwise may be agreed to by Host in writing; and (ii) in lieu of, and not in addition to, the confidentiality terms of Section 9 with respect to the Customer Content. Customer agrees that Host may transmit or disclose the Customer Content to third parties in accordance with Customer’s directions.

License Grant; Intellectual Property Rights.

License of Customer Content
1. Subject to the terms and conditions of this Agreement, for the term of this Agreement, Customer grants to Host a non-exclusive, worldwide and royalty free license to copy, display, use and transmit on and via the Server and the Internet the Customer Content, solely for the benefit of Customer and in accordance with Host’s performance or enforcement of this Agreement.
2. As between Host and Customer, Customer retains title and ownership in and to all worldwide intellectual property rights in and to the Customer Content and any modifications, adaptations, derivative works, and enhancements made thereto, but specifically excluding any Host Materials and any names, logos, trademarks, services marks or other proprietary indicia of Host (collectively, the “Marks”) that may be included or embodied in the Customer Content.
License of Host Materials
1. Subject to the terms and conditions of this Agreement, Host hereby grants to Customer a limited, nonexclusive, nontransferable, revocable license during the term of this Agreement to use the Host Materials solely to support Customer’s use of the Services.
2. Host and its suppliers expressly retain, and Customer hereby waives any claim that it may have had or has to, title and ownership in and to all worldwide intellectual property rights in and to the Services, the Host Materials and any modifications, adaptations, derivative works, and enhancements made thereto. Except as expressly set forth in this Agreement, no express or implied license, moral rights, or other rights of any kind are granted to Customer regarding the Services or Host Materials. Customer shall not, without the prior written consent of Host: (u) reverse engineer, disassemble, decompile, recompile, update or modify the Host Materials, or any part thereof; (v) create derivative works based on the Host Materials; (w) reproduce or make copies of the Host Materials or any portion thereof; (x) sublicense, provide access to, distribute or otherwise transfer the Host Materials to any other person or entity; (y) remove any identification or notices of any proprietary or copyright restrictions from any Host Materials, related documentation or support or training material; or (z) compile or use the Host Materials or any part thereof for the purpose of any activities that violate any laws or regulations, including, without limitation, any anti-spamming laws and regulations. Except for creation, management and use of the Customer Content by Customer on the Site as permitted hereunder during the term of this Agreement, Customer may not, at any time, use or exploit or authorize any third party to use or exploit, any Customer Content that embodies Host Materials or that was created or developed using the Host Materials. Customer will comply with all terms and conditions packaged with or accompanying any third party software furnished to Customer under this Agreement. Customer agrees that Host may crawl or otherwise monitor Customer’s use of the Host Materials for the purpose of verifying Customer’s compliance with this Agreement. Customer may not attempt to block or otherwise interfere with such crawling or monitoring.
3. Customer may not use the Marks without Host’ prior written approval, including, without limitation, using the Marks (or any of them) to identify Host as the supplier or source of the Services provided to Customer hereunder.

Services Terms and Obligations

Service Availability
1. Subject to the terms and conditions of this Agreement, Host shall use its commercially reasonable efforts to provide the Services for twenty-four (24) hours a day, seven (7) days a week throughout the term of this Agreement and guarantees Service Availability greater than or equal to 99.9%. “Service Availability” shall mean the ability of Customer and its end users to access a Site via the Internet. Subject to the terms of subsections (iii) and (iv), below, in the event that Service Availability falls below 99.9% for any given month, then: (i) for every outage lasting for at least 30 minutes but less than 60 minutes, Host will provide Customer with one Service Credit; and (ii) for every outage lasting for 60 minutes or more, then Host will provide Customer with one Service Credit per 60 minute period of such outage. “Service Credit” means amount equal to 1/30th of the monthly recurring service charges with respect to the affected Site for the month in which the Service Availability guarantee is breached.
2. Notwithstanding anything to the contrary in this Schedule, the Service Availability guarantee shall not be deemed to be breached and no remedy shall be available to Customer hereunder (x) if Customer has not paid any undisputed amounts due under this Agreement (the parties agreeing not to unreasonably dispute any amounts due); or (y) to the extent such breach is caused by any of the following: (1) a failure of applications or software code owned or licensed by Customer or provided to Host by Customer; (2) a failure or delay by Host testing agent to report data relating to the service performance metrics set forth in the applicable order, including any failure or delay caused by false-positive data point readings; (3) a failure of any service or product other than the Services (including the failure of any other service or product provided to Customer by Host or any affiliate of Host, which failure shall be governed any service level warranty set forth in the terms or agreement applicable to such service or product); (4) force majeure events as defined under this Agreement; (5) any act or omission of Customer or any third party, including, without limitation, Customer’s agents, contractors or vendors, that causes Host to be unable to meet the Service Level guarantee, including, without limitation, failing to take any remedial action in relation to a Service as recommended by Host, or otherwise preventing Host from doing so; (6) Customer’s negligence or willful misconduct, which may include Customer’s failure to follow agreed- upon procedures; (7) any scheduled maintenance periods when Customer has been informed of such maintenance and any emergency maintenance; (8) Customer’s account, during the period in question, violating the AUP; or (9) Customer not opening a support ticket to report any specific service performance issue.
3. Claims for Service Credits must be submitted not later than thirty (30) calendar days after the last day of the month in which the applicable failure of the Service Availability guarantee occurred. Each claim must include the following information: (v) Customer name; (w) Customer contact name and contact information; (x) date and beginning/end time of outage; (y) a report from a measurement tool stating the basis for the outage; and (z) the specific Host support ticket number opened in relation to the performance issue and brief description of the characteristics of the outage. Customer must submit the required information by written electronic notice to billing@careservtech.com. Approved credits will be applied to the Customer’s invoice within sixty (60) days of the Customer’s credit request submission.
4. THE SERVICE AVAILABILITY GUARANTY SET FORTH IN SECTION 3(A)(I) SHALL APPLY ONLY TO THE SERVICES AND DOES NOT APPLY TO ANY OTHER SERVICE. THIS SECTION 3(A) STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE BY HOST TO PROVIDE THE SERVICES DESCRIBED HEREIN AND ANY BREACH BY HOST OF THE SERVICE AVAILABILTIY GUARANTEE SET FORTH HEREIN. NOTWITHSTANDINGANYTHINGCONTAINEDTOTHE CONTRARY HEREIN OR ANYWHERE ELSE IN THE AGREEMENT, THE MAXIMUM AMOUNT OF SERVICE CREDITS HOST WILL HAVE TO GRANT FOR THE HOSTING SERVICE IN ANY ONE MONTH SHALL BE THE MONTHLY RECURRING CHARGES UNDER THE ORDER APPLICABLE TO THE SERVICES.
Technical Requirements for Services. Customer agrees to comply with the applicable hardware, software and other technical and pre-setup requirements for Customer’s use of the Services as established by Host from time to time, and Customer agrees to use the Services and any Host Materials in accordance with its then- current documentation (which may be in written or electronic form). Customer may not resell the Services. Customer acknowledges that Customer’s use of the Services will require Internet access, which shall be provided to Customer as part of the Services hereunder in consideration for the fees set forth on the applicable Order(s).
Customer Support.
1. Host will provide Customer with technical assistance by email or other Internet-based communication with respect to the access and use of the Services and the identification and reporting of problems or errors with the Services. Host will respond to Customer within a reasonable period of time from a request placed by Customer during Host’s normal operating hours, 8:30 a.m. to 5:30 p.m., Eastern Standard Time, Monday through Friday, holidays excepted, unless otherwise stated in Order.
2. On the same terms, Host will provide “2nd Tier” support with respect to access of the Site by Customer’s end users via the Services. In this regard, Customer shall be responsible for routine troubleshooting and intake of all issues and questions of end users related to the Site. Customer (or its designated service providers) shall then make commercially reasonable efforts to address and to correct all issues or problems of its end users. If, after making such reasonable efforts, Customer or its service provider cannot correct an error or problem related solely to the Services or Host Materials, Customer shall notify Host, and Host shall assist Customer or its service provider (not the end user) in diagnosing and correcting such error or problem. In no event will Host be required to provide support or maintenance services directly toany end user of Customer in accordance with the above terms.

Fees and Payment Terms

Fees. Customer shall pay Host for the Services according to the prices and terms listed in the Order(s), together with all reasonable fees or costs for third party products or services that Company procures on behalf of Customer, to the extent approved by Customer in writing. The prices listed in an Order will remain in effect during the Initial Term indicated in such Order. Host reserves the right to change, upon thirty (30) days’ prior written notice to Customer, any of the fees it charges Customer for any Service received by Customer during a Renewal Term, and Customer’s continued use of the Service provided under and Order as of the first date of the Renewal Term shall constitute its acceptance of the changedfee. Alternatively,CustomermayterminatesuchOrderby providing written notice to Host within fifteen (15) days of receiving notice of the changed fee.
Invoices
1. Unless otherwise indicated in an Order, Customer and Host will specify a monthly charge for each Service provided under the Order (the “Per Service MRC”). During each month in which an Order is in effect, the Per Service MRC for each then-current Service offered under such Order shall be added together to determine that month’s monthly recurring charge for such Order (the “MRC”).
2. Before the provisioning for any Service, Customer shall bill Customer for all non-recurring fees (“NRC”) indicated in the Order with respect to all Services set forth in the Order and for the first month’s MRC (the “Initial Invoice”). Customer will be required to pay the Initial Invoice prior to Customer provisioning any Service under an Order. Payment of the Initial Invoice will be credited against future invoices for Services provided. After the Initial Invoice, invoicing under each Order occurs (i) monthly in advance for the MRC (if any), and (ii) monthly in arrears for Usage Charges (as defined hereafter). The “Usage Charge” for a particular month shall be an amount (if positive) equal to (x) the sum of all of the Per Service Usage Charges (as defined hereafter) for all Services provided to Customer under an Order during such month, less (y) the MRC invoiced under such Order for such month (if any). The “Per Service Usage Charge” for each Service shall mean the total fees incurred by Customer with respect to such Service, calculated pursuant to the applicable Order, including, without limitation, any professional services fees. Host reserves the right to invoice on a pro rata basis for any part of a calendar month to either: (i) allow for subsequent invoices to be calculated and paid on a calendar monthly basis or (ii) allow for the end of the term of a Service or Services to be on a date that is not the last day of the month. Except in instances where Host terminates the Agreement or any Order under Sections 5(c) or (e), if the Customer prepays for any Order, such prepayments are NON- REFUNDABLE AND NOT SUBJECT TO EXHCANGE.
Payment Terms. Unless otherwise stated in an Order, other than MRCs, which are due in advance, all fees and charges are due within thirty (30) days of the date of invoice therefor. Any invoiced charges not received within thirty (30) days of the invoice date will accrue interest at a rate of one and one-half percent (1.5%) per month, or the highest rate allowed by applicable law, whichever is lower. In addition to the foregoing and without prejudice to Host’s other rights and remedies under this Agreement, at law or equity, if Customer is delinquent in its payments, Host may, at Host’s sole discretion and upon five (5) calendar days prior written notice to Customer and Customer’s failure to cure such delinquency, do any one or more of the following: (i) terminate this Agreement pursuant to its terms; (ii) in whole or in part suspend providing Services (or any of them) to Customer until payment in full has been made to Host; or (iii) require other assurances to secure Customer’s payment obligations hereunder.
Taxes. All fees charged by Host with respect to the Services are exclusive of taxes, VAT and similar fees now in force or enacted in the future imposed on the transaction, all of which the Customer will be responsible for, except for taxes based on Host’ net income.

Term and Termination.

Term. The initial term of this Agreement shall commence on the Effective Date and, unless terminated earlier as set forth herein, continue for the period specified in the initial Order. The term of this Agreement will automatically be renewed for additional successive periods of one (1) year each (each, a “Renewal Term”) unless either party delivers to the other party written notice of its election not to so renew this Agreement at least sixty (60) days prior to the then- expiring term.
Termination with Cause. Either party may terminate this Agreement immediately upon written notice to the other party (or Host may, in its sole discretion, suspend the provision of Services) if: (i) the other party commits a material breach of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of the same, except in the case of Customer’s failure to pay fees, which must be cured within five (5) calendar days after receipt of written notice from Host; (ii) the other party becomes the subject of a or involuntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (iii) commits a material breach of this Agreement that is incapable of remedy, including, without limitation Customer’s breach of Sections 1(c)(iii) or 6(a). In addition to the foregoing, Host may terminate this Agreement immediately upon written notice to Customer if Customer (x) makes available, via the Site or the Services, Customer Content that violates the intellectual property rights of third parties; or (y) repeatedly breaches this Agreement.
Termination without Cause. Subject to the payment of any fees due under Section 5(d), below, either party may terminate this Agreement, without cause, upon thirty (30) days prior written notice to the other party. In addition, Host may cancel or suspend the provision of the Services, or portion thereof, upon reasonable notice to Customer if the provision of the Services, or any portion thereof, is determined to be a violation of any applicable law or regulation or of any Host license in any jurisdiction, or is no longer permitted under any of the same.
Early Termination. In the event that Customer terminates this Agreement pursuant to Section 5(c) at any time after the first thirty (30) days of the initial term hereof, then Customer shall pay to Host an amount equal to fifty percent (50%) of the monthly recurring service charges that would have been payable, assuming termination had not occurred, for the remainder of the then-current initial or renewal terms (as the case may be) of this Agreement. Customer agrees that the injury Provider will suffer upon Customer’s breach or early termination of this Agreement are difficult to estimate accurately and that the termination fees provided for in this Section 5(d) are not a penalty, but are a reasonable estimate of the probable loss Provider will suffer in such event.
Termination of Service Agreement. Customer acknowledges that Host’s ability to provide the Services is subject to various licenses or other agreements (each a “Service Agreement”) between Host and its third party suppliers. In the event of the expiration or termination of any applicable Service Agreement, Host will use commercially reasonable efforts to obtain alternative suppliers in order to avoid suspension or disruption in the Services. If Host is unable, for any reason, to obtain such an alternative or replacement Service Agreement, Host may terminate this Agreement and the Services upon written notice to Customer without any liability to Customer. Host agrees to give Customer at least sixty (60) days prior written notice to Customer (or, if it is not possible to give 60 days notice, as much notice as possible under the circumstances) of the termination or expiration of a Service Agreement governing Host’s ability to deliver the Services to Customer, or any other condition arising under such Service Agreement that is likely to adversely affect Customer’s use of the Services or Host’s ability to provide the Services. If Host terminates this Agreement pursuant to this Section 8.3, and Customer has prepaid for the Services under this Agreement, then Host will, after applying such prepayment to all fees and charges due under the Agreement, return the unused portion of such prepayment to Customer within forty-five (45) days after the date of termination.
Procedure upon Termination
1. Upon the effective date of termination or expiration of this Agreement: (x) Host will immediately cease providing the Services, and Customer shall immediately cease using such Services; (y) all licenses granted hereunder with respect to the terminated Services will immediately terminate; and (z) any and all payment obligations of Customer hereunder for Services provided through the date of termination will immediately become due. If Customer fails to pay such amounts on the date due, then Company shall impose the late fees set forth in Section 4(b). In addition to the foregoing, within thirty (30) days of termination or expiration of this Agreement, each party will return or certify the destruction of all Confidential Information (defined below) of the other party in its possession and will not make or retain any copies of such Confidential Information, except as required to comply with any applicable legal or accounting record keeping requirement.
2. Within ten (10) days of expiration or termination of this Agreement, Customer must notify Host whether to (x) disable Customer’s account and delete the Customer Customer Content; or (y) provide Customer with limited access to its account for a period of forty-five (45) days after the date of such expiration or termination (the “Retention Period”) for the sole purpose of permitting Customer (or its authorized agent) to retrieve the Customer Content, in which case Customer will reimburse Host if there are any applicable costs; provided, however, that the provisions of subsection (y) shall not apply unless Customer has paid all amounts due to Host through the effective date of termination no later than ten (10) days after such date. If Customer does not indicate (x) or (y), Host will retain the Customer Content in accordance with subsection (y). Following the expiration of the Retention Period, Host will disable Customer’s account and delete the Customer Content. Customer agrees that, other than as described in this Section 5(f)(ii) and notwithstanding any other term in this Agreement, Host has no obligation to continue to hold or return the Customer Content. Customer further agrees that Host has no liability whatsoever for deletion of the Customer Content pursuant to these terms.
3. The definitions herein and the respective rights and obligations of the parties under Sections 5(d), 5(f) and 6-10 shall survive any termination or expiration hereof.

Warranties; Disclaimers

Each party warrants and represents that: (i) it has the legal right to enter into this Agreement and perform its obligations hereunder; and
1. the performance of its obligations hereunder will not violate any applicable U.S. laws or regulations or cause a breach of any agreements of such party with any third parties. In addition, Customer represents and warrants that (x) the performance of its obligations and use of the Services by Customer will not violate any applicable laws or the AUP; (y) the Site and Customer Content does not and shall not contain any content, materials, data, work, trade or service mark, trade name, link, advertising or services that actually or potentially violate any applicable law or regulation or infringe or misappropriate any proprietary, intellectual property, contract or tort right of any person; and (z) Customer owns the Customer Content and all proprietary or intellectual property rights therein, or has express written authorization from the owner to copy, use and display the Customer Content on and within the Site. The representations and warranties made by Customer in this Section 6(a) will be automatically reaffirmed each time it submits Customer Content to Host. CUSTOMER’SSOLEREMEDIESFORHOSTS’BREACHOF ANY OF THE WARRANTIES SET FORTH IN THIS SECTION 6(A) ARE (1) TERMINATION OF THIS AGREEMENT PURSUANT TO ITS TERMS; AND (2) RETURN OF ALL UNUSED FEES AND DEPOSITS PAID TO HOST HEREUNDER.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN HEREIN, THE SERVICES ARE PROVIDED EXCLUSIVELY ON AN “AS IS” BASIS, AND HOST AND ITS SUPPLIERS DISCLAIM ANY AND ALL OTHER EXPRESS, IMPLIED AND STATUTORY WARRANTIES WITH RESPECT TO THE SERVICES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, QUALITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE. CARESERV TECHNOLOGIES DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.

Limitations of Liability; Force Majeure

Customer acknowledges and agrees, as between the parties, that Customer has sole responsibility for adequate security, protection and backup of the Customer Content and the data used or generated in connection with the Services or the Site. Host disclaims all responsibility or liability to Customer for unauthorized access or use, corruption, deletion, destruction or loss of any Customer Content.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL HOST, ITS AFFILIATES OR SUPPLIERS BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES OR COSTS, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUES, LOSS OF DATA OR PROPERTY, INTERRUPTED OR DELAYED COMMUNICATIONS OR INACCURATE INPUT ARISING FROM ANY CLAIMS WHETHER BASED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE AND STRICT TORT), OR OTHERWISE IN CONNECTION WITH THE SERVICES OR THIS AGREEMENT, EVEN IF HOST, ITS AFFILIATES OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS.
IN NO EVENT WILL HOST, ITS AFFILIATES OR SUPPLIERS, BE LIABLE TO CUSTOMER OR ANY USERS UNDER THIS AGREEMENT OR OTHERWISE, REGARDLESS OF THE FORM OF CLAIM OR ACTION, IN AN AMOUNT THAT EXCEEDS THE TOTAL FEES RECEIVED BY HOST UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO SUCH CLAIM.
Neither party shall be liable for and will not be responsible to the other for any delay or failure to perform under this Agreement if such delay or failure results from any act or cause beyond the reasonable control of the affected party. If either party is unable to perform under this agreement because of the occurrence of an event of force majeure lasting more than thirty (30) days, then the other party may terminate this Agreement only upon written notice to the other party.

Indemnification

By Customer. Customer will indemnify, defend and hold Host, its affiliates and their respective directors, officers, employees, agents, successors and assigns (each a “Host Indemnitee”) harmless from and against any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys’ fees and costs) (collectively, “Losses”) resulting from any claim, suit, action, or proceeding (each, an “Action”) brought by any third party against a Host Indemnitee alleging (i) copyright infringement or any manner of violation of any intellectual property or other proprietary rights of a third party, defamation, publication of obscene, indecent, offensive, racist, unreasonably violent, threatening, intimidating or harassing material, or violation of data protection legislation, based on (x) the Customer Content or any other content or information transmitted by Customer or its client or end user using the Hosting Service; (y) the use or publication of all communications or information transmitted by Customer or its client or end user using the Services; or (z) Customer’s misuse of the Service; or (ii) negligence or willful misconduct of Customer or its client or end user.
By Host. Host will indemnify, defend and hold harmless Customer, its affiliates and their respective directors, officers, employees, agents, successors and assigns (each a “Customer Indemnitee”) from and against any and all Losses resulting from any Action brought by any third party against a Customer Indemnitee alleging (i) the infringement or misappropriation of any intellectual property right relating to the Services or the Host Materials; and (ii) gross negligence or willful misconduct of Host; provided, however that Host shall have no obligation under this Section 8(b) to the extent such Action is caused by (v) Customer’s or a third party’s modification of the Services or Host Materials; (w) Host’s adherence to Customer’s instructions; (x) infringing items of Customer’s or a third party’s origin, design or selection, including, without limitation, Customer Content; (y) the operation, combination or use of Services or Host Materials, without Host’s prior written consent, with products or services provided by Customer or third parties; or (z) Customer’s negligence, willful misconduct or intentionally wrongful conduct. THIS SECTION STATES HOST’S ENTIRE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS AND ACTIONS.
Procedure. Each party’s indemnification obligations hereunder shall be subject to: (i) receiving prompt written notice of the existence of any Action (provided, however, that failure to satisfy this condition shall relieve a party of its indemnification obligations only to the extent the indemnifying party is actually prejudiced thereby); (ii) being able to, at its option and expense, control the defense of such Action (provided, however, that the indemnifying party shall not, without the prior written consent of the indemnified party, settle any Action or otherwise consent to the entry of any order or judgment in any Action if such settlement, order or judgment admits any liability of the indemnified party or requires the indemnified party to take or to refrain from taking any action, other than the payment of damages); (iii) permitting the indemnified party to participate in the defense of any Action, at the indemnified party’s option and expense; and (iv) receiving full cooperation of the indemnified party in the defense thereof. In the event Customer notifies Host of any Action against Customer, Host’s indemnification obligations shall be further conditioned on Host having the option to do one or more of the following: (x) to permit any party obligated to indemnify Host in such circumstances to defend or settle, at such party’s own expense, such a claim or suit; (y) to procure a license sufficient to continue offering the Services (including, without limitation, Customer’s use thereof); or (z) to terminate the applicable Service (provided that in the event of terminating the applicable Service, Host shall continue to remain liable for its indemnification obligations).

Confidential Information

Each party acknowledges that it will have access to “confidential information” of the other party, as defined in O.C.G.A. § 13-8-51(3), (collectively, “Confidential Information”), which shall expressly include, but not be limited to the Host Materials, but shall not include the Customer Content. Each party agrees that it will not use in any way, for its own account or the account of any third party, except as expressly permitted by, or to the limited extent required to achieve the purposes of, this Agreement, nor disclose to any third party (except as required by law or to such party’s employees, attorneys, accountants and other advisors as reasonably necessary), any Confidential Information of the other party. Each party will protect the confidentiality of the Confidential Information of the other party by employing the same measures (but in no event less than reasonable measures) as it takes to protect its own Confidential Information. The obligations of this Section 9 shall last during and after the term of this Agreement.
The receiving party may disclose Confidential Information pursuant to the requirements of a validly issued subpoena, governmental agency or by operation of law, provided that it gives the disclosing party, when practical and permitted, reasonable prior written notice sufficient to permit the disclosing party to contest such disclosure.
In the event of a violation or threat of violation by a party, directly or indirectly, of the terms of Section 9, the party who would be harmed by such violation, will have the right, and in addition to all other remedies available to it at law, in equity or under this Agreement, to affirmative or negative injunctive relief from a court of competent jurisdiction. Each party acknowledges that a violation of Section 9 would cause irreparable harm and that all other remedies are inadequate.
In the event that Customer discloses personal data to Host (“Personal Data”), Customer (i) agrees that Host or its affiliate(s) may process such Personal Data consistent with applicable law and regulation, only for the purpose of the provision of the Services by Host to Customer or for purposes connected with the subject matter of the disclosure or business relationship between the parties (including, without limitation, as described in Section 1(c)(ii)); (ii) acknowledge that such processing may include the transfer of such Personal Data to Host affiliates worldwide and/or its storage in a local or foreign database; and (iii) agree that Customer will, to the extent required by applicable law, obtain all necessary consents to such processing from the data subjects concerned.
Neither party will publish or use any advertising, sales promotions, press releases or other publicity that uses the name, logo, trademarks or service marks of the other without the prior written approval of the other, provided that Host may list Customer as a customer.

General

The parties and their respective personnel are and shall be independent contractors, and neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party. No waiver of any provision hereof or of any right or remedy hereunder shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No delay in exercising, no course of dealing with respect to, or no partial exercise of any right or remedy hereunder shall constitute a waiver of any other right or remedy, or future exercise thereof. If any provision of this Agreement is determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable. All notices shall be in writing and shall be deemed to be delivered when received by certified mail, postage prepaid, return receipt requested, or when sent by facsimile or e-mail confirmed by facsimile. All notices shall be directed to the parties at the respective addresses given above or to such other address as either party may, from time to time, designate by notice to the other party. No amendment, change, waiver, or discharge hereof shall be valid unless in writing and signed by both parties. This Agreement and all obligations of the Parties hereunder shall be interpreted, construed, and enforced in accordance with the laws of the State of Georgia, without regard to any conflict of laws rules or analyses. Any action or proceeding arising from or relating to this Agreement must be brought in a state or federal court having jurisdiction in Gwinnett County, Georgia, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding and agrees to waive any defenses to venue and jurisdiction including forum non conveniens. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. The parties agree that time is of the essence in the performance of the respective obligations under this Agreement. This Agreement, together with all Orders entered into in connection herewith and the AUP, constitutes the complete and exclusive statement of all mutual understandings between the parties with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications and understandings, oral or written. Any Order entered into hereunder may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. Neither this Agreement, nor Customer’s obligations or rights hereunder, may be transferred or assigned by Customer without Host’s prior written consent. Any attempted assignment, transfer or other disposition by Customer in violation of this provision will be null, void and of no force and effect. Host may freely assign this Agreement without consent of the Customer. This Agreement shall inure to the benefit of and be binding upon the permitted successors, legal representatives and assigns of the parties hereto. There shall be no third party beneficiaries to this Agreement.