Website Hosting Terms of Service

These Terms of Service (the “Agreement”) are an agreement between White Peak Growth Partners, LLC and its assigns and licensees (“White Peak” or “us” or “our”) and you (“User” or “you” or “your”). This Agreement sets forth the general terms and conditions of your use of website hosting made available by White Peak (the “Services”).

BY USING THE SERVICES, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO ABIDE BY THE TERMS OF THIS AGREEMENT, YOU ARE NOT AUTHORIZED TO USE OR ACCESS THE SERVICES AND YOU SHOULD REMOVE YOUR WEBSITE FROM OUR HOSTING SERVERS IMMEDIATELY AND CANCEL YOUR HOSTING ACCOUNT WITH US, IF ONE EXISTS.

Additional Policies and Agreements

Use of the Services is also governed by the Acceptable Use Policy, which is incorporated by reference. By using the Services, you also agree to the terms of the following policies.

Account Eligibility

By registering for or using the Services, you represent and warrant that:

1. You are eighteen (18) years of age or older. The Services are intended solely for Users who are eighteen (18) years of age or older. Any registration, use of or access to the Services, by anyone under eighteen (18) is unauthorized and is a violation of this Agreement.
2. If you use the Services on behalf of another party you agree that you are authorized to bind such other party to this Agreement and to act on such other party’s behalf with respect to any actions you take in connection with the Services.

It is your responsibility to provide accurate, current, and complete information on the registration forms, including an email address and phone number. If there is ever an abuse issue or we need to contact you, we will use the contact information we have on file. It is your responsibility to ensure that the contact information for your account, including any domain accounts, is accurate, correct, and complete at all times. If you need to verify or change your contact information, you should contact White Peak to update your contact information. Providing false contact information of any kind may result in the termination of your account.

You agree to be fully responsible for all use of your account and for any actions that take place through your account. It is your responsibility to maintain the confidentiality of your password and other information related to the security of your account.

The Service and any data you provide to White Peak is hosted in the United States (U.S.) unless otherwise provided. If you access the Service from outside of the U.S., you are voluntarily transferring information (potentially including personally-identifiable information) and content to the U.S., and you agree that our collection, use, storage, and sharing of your information and content is subject to the laws of the U.S., and not necessarily of the jurisdiction in which you are located.

Transfers

Our Transfers Team will make every effort to help you move your website to us. Transfers are provided as a courtesy service. We do not make any guarantees regarding the availability, possibility, or time required to complete an account transfer. Each hosting company is configured differently, and some hosting platforms save data in an incompatible or proprietary format, which may make it extremely difficult, if not impossible, to migrate some or all account data. In some cases, we may not be able to assist you in the transfer of data from an old host. The free transfer service is available for thirty (30) days from your sign-up date. Transfers outside of the thirty (30) day period will incur a charge; please contact a member of our Transfers department to receive a price quote. In no event shall White Peak be held liable for any lost or missing data or files resulting from a transfer to or from White Peak. You are solely responsible for backing up your data in all circumstances unless otherwise agreed to in writing.

White Peak Content

Except for User Content (as defined below), all content available through the Services, including designs, text, graphics, images, video, information, software, audio and other files, and their selection and arrangement, and all software used to provide the Services (collectively, “White Peak Content”), are the proprietary property of White Peak or White Peak’s licensors, vendors or partners. White Peak Content may not be modified, copied, distributed, framed, reproduced, republished, downloaded, scraped, displayed, posted, transmitted, sold or exploited for any purpose in any form or by any means, in whole or in part, other than as expressly permitted in this Agreement. You may not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any White Peak Content. Any use of White Peak Content, other than as specifically authorized herein, is prohibited and will automatically terminate your rights to use the Services and any White Peak Content. All rights to use White Peak Content that are not expressly granted in this Agreement are reserved by White Peak and White Peak’s licensors.

User Content

You may be able to upload, store, publish, display and distribute information, text, photos, videos, and other content on or through the Services (collectively, “User Content”). User Content includes any content posted by you or by users of any of your websites hosted through the Services (“User Websites”). You are solely responsible for any and all User Content and any transactions or other activities conducted on or through User Websites. By posting or distributing User Content on or through the Services, you represent and warrant to White Peak that (i) you have all the necessary rights to post or distribute such User Content, and (ii) your posting or distribution of such User Content does not infringe or violate the rights of any third-party.

Solely for purposes of providing the Services, you hereby grant to White Peak a non-exclusive, royalty-free, worldwide right and license to: (i) use, reproduce, publicly perform, publicly display, modify, translate, excerpt (in whole or in part), publish and distribute User Content; and (ii) make archival or back-up copies of User Content and User Websites. Except for the rights expressly granted herein, White Peak does not acquire any right, title, or interest in or to the User Content, all of which shall remain solely with you.

White Peak exercises no control over and accepts no responsibility for, User Content or the content of any information passing through White Peak’s computers, network hubs, and points of presence or the Internet. White Peak does not monitor User Content. However, you acknowledge and agree that White Peak may, but is not obligated to, immediately take any corrective action in White Peak’s sole discretion, including without limitation removal of all or a portion of the User Content or User Websites, and suspend or terminate any and all Services without refund if you violate the terms of this Agreement. You hereby agree that White Peak shall have no liability due to any corrective action that White Peak may take.

Compliance with Applicable Law

You agree to comply with all applicable laws, rules, and regulations, including without limitation all local rules where you reside or your organization is located regarding User Content, User Websites, online activities, email, and your use of the Services. More specifically, but without limitation, you agree to comply with all applicable laws regarding the transmission of technical data exported to or from the United States or the country in which you reside. The Services are controlled and operated by us and third parties around the world to assist us in providing the Services from offices within the United States and elsewhere and we make no representation that the Services are appropriate or available for use in any location other than the United States. Those who access the Services from locations outside the United States do so at their own initiative and risk and are fully responsible for compliance with all applicable laws in those locations. We do not offer the Services where prohibited by law.

For the purposes of European Directive 95/46/EC, the General Data Protection Regulation 2016/679) (“GDPR”) and any applicable national implementing laws in your jurisdiction, and with respect to your subscribers’ or customers’ personal data, you acknowledge and agree that you are the Controller (as that term is defined in the GDPR), and we are a Processor (as that term is defined in the GDPR) insofar as you may store personal data through your use of our Services only as permitted and subject to the terms of this Agreement. You also acknowledge and agree that you are responsible for complying with all obligations of a data controller under applicable law (including the GDPR).

To the extent the GDPR applies to you, you represent and warrant that in using our Services, you will clearly describe in writing how you plan to use any personal data collected and you will ensure you have a legitimate legal basis to transfer such personal data to us (and by extension our vendors) and that you have the necessary permission to allow us (and by extension our vendors) to receive and process (e.g., store) such personal data on your behalf.

Third-party Products and Services

Third-party Providers
White Peak may offer certain third-party products and services. Such products and services may be subject to the terms and conditions of the third-party provider. Discounts, promotions, and special third-party offers may be subject to additional restrictions and limitations by the third-party provider. You should confirm the terms of any purchase and the use of goods or services with the specific third-party provider with whom you are dealing.

White Peak does not make any representations or warranties regarding, and is not liable for, the quality, availability, or timeliness of goods or services provided by a third-party provider. You undertake all transactions with these third-party providers at your own risk. We do not warrant the accuracy or completeness of any information regarding third-party providers. White Peak is not an agent, representative, trustee, or fiduciary of you or the third-party provider in any transaction.

White Peak as Reseller or Licensor
White Peak may act as a reseller or licensor of certain third-party services, hardware, software, and equipment used in connection with the Services (“Non-White Peak Products”). White Peak shall not be responsible for any changes in the Services that cause any Non-White Peak Products to become obsolete, require modification or alteration, or otherwise, affect the performance of the Services. Any malfunction or manufacturer’s defects of Non-White Peak Products, either sold, licensed, or provided by White Peak to you will not be deemed a breach of White Peak’s obligations under this Agreement. Any rights or remedies you may have regarding the ownership, licensing, performance, or compliance of any Non-White Peak Product are limited to those rights extended to you by the manufacturer of such Non-White Peak Product. You are entitled to use any Non-White Peak Product supplied by White Peak only in connection with your use of the Services as permitted under this Agreement. You shall make no attempt to copy, alter, reverse engineer, or tamper with such Non-White Peak Product or to use it other than in connection with the Services. You shall not resell, transfer, export, or re-export any Non-White Peak Product, or any technical data derived therefrom, in violation of any applicable law, rules, or regulations.

Third-party Websites
The Services may contain links to other websites that are not owned or controlled by White Peak (“Third-party Sites”), as well as articles, photographs, text, graphics, pictures, designs, sound, video, information, and other content or items belonging to or originating from third parties (“Third-party Content”). We are not responsible for any Third-party Sites or Third-party Content accessed through the Services. Third-party Sites and Third-party Content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by us. If you decide to access Third-party Sites or to access or use any Third-party Content, you do so at your own risk and you should be aware that our terms and policies no longer govern. You should review the applicable third-party’s terms and policies, including privacy and data gathering practices of any website to which you navigate.

Prohibited Persons (Countries, Entities, And Individuals)
The Services are subject to export control and economic sanctions laws and regulations administered or enforced by the United States Department of Commerce, Department of Treasury’s Office of Foreign Assets Control (“OFAC”), Department of State, and other United States authorities (collectively, “U.S. Trade Laws”). You may not use the Services to export or re-export, or permit the export or reexport, of software or technical data in violation of U.S. Trade Laws. In addition, by using the Services, you represent and warrant that you are not (a) an individual, organization, or entity organized or located in a country or territory that is the target of OFAC sanctions (including Cuba, Iran, Syria, Sudan, North Korea, or the Crimea region of Ukraine); (b) designated as a Specially Designated National or Blocked Person by OFAC or otherwise owned, controlled, or acting on behalf of such a person; (c) otherwise a prohibited party under U.S. Trade Laws; or (d) engaged in nuclear, missile, chemical or biological weapons activities to which U.S. persons may not contribute without a U.S. Government license. Unless otherwise provided with explicit written permission, White Peak also prohibits the use of any of our Services in connection with, any Country-Code Top Level Domain Name (“ccTLD”) for any country or territory that is the target of OFAC sanctions. The obligations under this section shall survive any termination or expiration of this Agreement or your use of the Services.

Account Security and White Peak Systems

We will maintain commercially reasonable technical and operational measures designed to protect our internal networks from malicious activity and provide for the security and integrity thereof. However, the web is full of “bad actors” so we cannot and do not guarantee you that we can successfully protect you from them all. THEREFORE, YOU ACKNOWLEDGE THAT WE ARE NOT RESPONSIBLE FOR ANY LOSS OR HARM SUFFERED BY YOU RESULTING FROM A SECURITY INCIDENT NOR ARE WE RESPONSIBLE FOR RESOLVING PROBLEMS WITH YOUR WEBSITE SHOULD A SECURITY ISSUE OCCUR. You are responsible for determining whether the Services meet applicable regulatory standards and otherwise comply with your own security requirements. You agree to configure your use of the Services in such a way as to maintain the security of the Services and our network (e.g. by only uploading software that has been demonstrated to be secure, installing patches, and not sharing passwords).

It is your responsibility to ensure that scripts/programs installed under your account are secure and permissions of directories are set properly, regardless of the installation method. When at all possible, set permissions on most directories to 755 or as restrictive as possible. Users are ultimately responsible for all actions taken under their account. This includes the compromise of credentials such as user name and password. You are required to use a secure password. If a weak password is used, your account may be suspended until you agree to use a more secure password. Audits may be done to prevent weak passwords from being used. If an audit is performed, and your password is found to be weak, we will notify you and allow time for you to change or update your password before suspending your account.

The Services, including all related equipment, networks, and network devices are provided only for authorized customer use. White Peak may, but is not obligated to, monitor our systems, including without limitation, to ensure that use is authorized, to facilitate protection against unauthorized access, and to verify security procedures, survivability, and operational security. During monitoring, information may be examined, recorded, copied, and used for authorized purposes. By using the Services, you consent to monitoring for these purposes.

Should we determine that our network has been accessed in an unauthorized manner and that unauthorized access impacts your Services, we agree to notify you as soon as reasonably practicable after we have investigated the unauthorized access and fulfilled our legal obligations. Likewise, you agree to notify us should you identify unauthorized access to the Services.

Any account found connecting to a third-party network or system without authorization from the third party is subject to suspension. Access to networks or systems outside of your direct control requires the express written consent of the third party. White Peak may, at our discretion, request documentation to prove that your access to a third-party network or system is authorized.

Any account which causes us to receive an abuse report may be terminated and/or have access to services suspended. If you do not remove malicious content from your account after being notified by White Peak of an issue, we reserve the right to leave access to services disabled.

White Peak reserves the right to migrate your account from one data center to another in order to comply with applicable data center policies, local law or for technical or other reasons without notice.

HIPAA Disclaimer. We are not “HIPAA compliant.”

You are solely responsible for any applicable compliance with federal or state laws governing the privacy and security of personal data, including medical or other sensitive data. You acknowledge that the Services may not be appropriate for the storage or control of access to sensitive data, such as information about children or medical or health information. White Peak does not control or monitor the information or data you store on or transmit through, the Services. We specifically disclaim any representation or warranty that the Services, as offered, comply with the federal Health Insurance Portability and Accountability Act (“HIPAA”). Customers requiring secure storage of “protected health information” as defined under HIPAA are expressly prohibited from using the Services for such purposes. Storing and permitting access to “protected health information” is a material violation of this Agreement, and grounds for immediate account termination. We do not sign “Business Associate Agreements” and you agree that White Peak is not a Business Associate or subcontractor or agent of yours pursuant to HIPAA. If you have questions about the security of your data, you should contact growth@whitepeak.io.

Compatibility with the Services

You agree to cooperate fully with White Peak in connection with White Peak’s provision of the Services. It is solely your responsibility to provide any equipment or software that may be necessary for your use of the Services. To the extent that the performance of any of our obligations under this Agreement may depend upon your performance of your obligations, White Peak is not responsible for any delays due to your failure to timely perform your obligations.

You are solely responsible for ensuring that all User Content and User Websites are compatible with the hardware and software used by White Peak to provide the Services, which may be changed by White Peak from time to time in our sole discretion.

YOU ARE SOLELY RESPONSIBLE FOR BACKING UP ALL USER CONTENT, INCLUDING BUT NOT LIMITED TO, ANY USER WEBSITES. WHILE WHITE PEAK DOES BACK UP YOUR WEBSITE, WE DO NOT WARRANT THAT OUR BACKUP, WHICH IS AUTOMATED, WILL  MEET YOUR NEEDS, AND YOU AGREE TO ACCEPT THE RISK OF LOSS OF ANY AND ALL USER CONTENT. AS OWNER OF THE WEBSITE, YOU MAY INITIATE YOUR OWN BACKUP AT ANY TIME, AT YOUR OWN DISCRETION.

Billing and Payment Information

Prepayment
It is your responsibility to ensure that your payment information is up to date and that all invoices are paid on time. You agree to pay for the Services in advance of the time period during which such Services are provided. Subject to applicable laws, rules, and regulations, payments received will be first applied to the oldest outstanding invoice in your billing account.

Autorenewal
Unless otherwise provided, you agree that until and unless you notify White Peak of your desire to cancel the Services, you will be billed on an automatically recurring basis to prevent any disruption to your Services, using your credit card or other billing information on file with us.

Taxes
Listed fees for the Services do not include any applicable sales, use, revenue, excise, or other taxes imposed by any taxing authority. Any applicable taxes will be added to White Peak’s invoice as a separate charge to be paid by you. All fees are non-refundable when paid unless otherwise stated.

Late Payment
ALL INVOICES FOR HOSTING SERVICES AND EVERY OTHER SERVICE PROVIDED TO YOU BY WHITE PEAK MUST BE PAID WITHIN FIFTEEN (15) DAYS OF THE INVOICE DUE DATE. ANY INVOICE, FOR ANY WHITE PEAK PROVIDED SERVICE, OF ANY TYPE, THAT IS OUTSTANDING FOR MORE THAN THIRTY-FIVE (35) DAYS MAY RESULT IN THE SUSPENSION OR TERMINATION OF THESE SERVICES (I.E. WEBSITE HOSTING) AND/OR ACCESS TO YOUR HOSTING ACCOUNT (I.E. CPANEL ACCESS AND/OR FTP ACCESS) AND/OR ADMINISTRATOR ACCESS TO THE WORDPRESS INSTALL THAT IS HOSTED ON OUR SERVERS. YOUR ACCESS  WILL NOT BE RESTORED UNTIL PAST DUE PAYMENT FOR ANY AND ALL WHITE PEAK PROVIDED SERVICES HAS BEEN RECEIVED.

If you fail to pay the hosting fees due to White Peak, White Peak may pursue the collection costs incurred by White Peak, including without limitation, any arbitration and legal fees, and reasonable attorneys’ fees. White Peak will not activate new orders or activate new packages for customers who have an outstanding balance on their accounts.

Domain Purchases
It is solely your responsibility to notify White Peak via email to growth@whitepeak.io after purchasing a domain. White Peak does not send domain renewal notices and White Peak is not responsible for a failure to renew a domain or a failure to notify a customer about a domain’s renewal.

Fraud
It is a violation of this Agreement for you to misuse or fraudulently use credit cards, charge cards, electronic funds transfers, electronic checks, or any other payment method. White Peak may report any such misuse or fraudulent use, as determined in White Peak’s sole discretion, to governmental and law enforcement authorities, credit reporting services, financial institutions and/or credit card companies.

Invoice Disputes
We will not exercise Our rights related to overdue or past due charges if, at White Peak’s sole discretion, You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. You have thirty (30) days from a payment due date to dispute any charge or payment processed by White Peak. Please contact us at growth@whitepeak.io if you are raising a dispute. This provision is not a promise to accept or agree with disputes filed.

Payment Card Industry Security Standard Disclaimer
White Peak complies with the Payment Card Industry Security Standard (“PCI Standard”) in connection with the collection and processing of our customer’s data and billing information. However, you are solely responsible for the security of the data and billing information on your User Website. WHITE PEAK DOES NOT MONITOR USER WEBSITES FOR PCI COMPLIANCE AND WE ARE NOT ABLE TO VERIFY WHETHER A USER WEBSITE COMPLIES WITH THE PCI STANDARD.

Money-Back Guarantee

White Peak does not offer a money-back guarantee for the Services.

Cancellations and Refunds

Refunds
No refunds will be provided.

Cancellation Process
You may terminate or cancel the Services by giving White Peak written notice via email to growth@whitepeak.io. In such an event: Cancellations will be effective on the account’s renewal date.  (i.e. no partial month fees shall be refunded).

Once we receive your cancellation notice and have confirmed all necessary information with you by telephone, we will inform you in writing (typically email) that your account has been canceled.

We require all cancellations to be done through our defined process to (a) confirm your identity, (b) confirm in writing that you are prepared for all of your files and emails to be removed, and (c) document the request. This process aims to reduce the likelihood of mistakes, fraudulent/malicious requests, and to ensure that you are aware that your files, emails, and account may be removed immediately and permanently after a cancellation request is processed.

Termination
White Peak may terminate your access to the Services, in whole or in part, without notice in the event that: (i) you fail to pay any fees due to White Peak; (ii) you violate this Agreement; (iii) your conduct may harm White Peak or others or cause White Peak or others to incur liability, as determined by White Peak in our sole discretion; or (iv) as otherwise specified in this Agreement. In such event, White Peak shall not refund to you any fees paid in advance of such termination, and you shall be obligated to pay all fees and charges accrued prior to the effectiveness of such termination. Additionally, White Peak may charge you for all fees due for the Services for the remaining portion of the then-current term.

UPON TERMINATION OF THE SERVICES FOR ANY REASON, USER CONTENT, USER WEBSITES, AND OTHER DATA WILL BE DELETED.

CPU, Bandwidth, and Disk Usage

Permitted CPU and Disk Usage
All use of hosting space provided by White Peak is subject to the terms of this Agreement and the Acceptable Use Policy.

Shared hosting space may only be used for web files, active email, and content of User Websites. Shared hosting space may not be used for storage (whether of media, emails, or other data), including, as offsite storage of electronic files, email or FTP hosts. White Peak expressly reserves the right to review every shared account for excessive usage of CPU, disk space, and other resources that may be caused by a violation of this Agreement or the Acceptable Use Policy. White Peak may, in our sole discretion, terminate access to the Services, apply additional fees, or remove or delete User Content for those accounts that are found to be in violation of White Peak’s terms and conditions.

Bandwidth Usage
Shared servers are not limited in their bandwidth allowance. Unlimited bandwidth usage is not available for resellers, dedicated or VPS servers, which are subject to the terms of the plan you purchased and can be viewed in your control panel.

Uptime Guarantee
If your shared server has a physical downtime that falls short of the 99% uptime guarantee, you may receive one (1) month of credit on your account, upon request. This uptime guarantee does not apply to planned maintenance or while updates are being made to your website. Approval of any credit is at the sole discretion of White Peak and may be dependent upon the justification provided. THIRD-PARTY MONITORING SERVICE REPORTS MAY NOT BE USED FOR JUSTIFICATION DUE TO A VARIETY OF FACTORS INCLUDING THE MONITOR’S NETWORK CAPACITY/TRANSIT AVAILABILITY. The uptime of the server is defined as the reported uptime from the operating system and the Apache Web Server which may differ from the uptime reported by other individual services. To request a credit, please send us an email to growth@whitepeak.io to create a support ticket to our Billing department with justification within thirty (30) days of the end of the month for which you are requesting a credit.

No Resale Shared
Your account may not be used to resell web hosting to others.

Price Change
White Peak reserves the right to change prices or any other charges at any time. We will provide you with at least thirty (30) day notice before charging you with any price change on any annual or longer-term plans. It is your sole responsibility to periodically review billing information provided by White Peak through the user billing tool or through other methods of communication, including notices sent or posted by White Peak.

Limitation of Liability
IN NO EVENT WILL WHITE PEAK ITS DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA ARISING FROM YOUR USE OF THE SERVICES, OR ANY USER CONTENT, USER WEBSITES OR OTHER MATERIALS ACCESSED OR DOWNLOADED THROUGH THE SERVICES, EVEN IF WHITE PEAK IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, WHITE PEAK’S LIABILITY TO YOU, OR ANY PARTY CLAIMING THROUGH YOU, FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, IS LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO WHITE PEAK FOR THE SERVICES IN THE THREE (3) MONTHS PRIOR TO THE INITIAL ACTION GIVING RISE TO LIABILITY. THIS IS AN AGGREGATE LIMIT. THE EXISTENCE OF MORE THAN ONE CLAIM HEREUNDER WILL NOT INCREASE THIS LIMIT.

Indemnification
You agree to indemnify, defend, and hold harmless White Peak, our affiliates, and their respective officers, directors, employees and agents (each an “Indemnified Party” and, collectively, the “Indemnified Parties”) from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorney’s fees) threatened, asserted, or filed by a third-party against any of the Indemnified Parties arising out of or relating to (i) your use of the Services, (ii) any breach or violation by you of this Agreement; or (iii) any acts or omissions by you. The terms of this section shall survive any termination of this Agreement.

Arbitration
By using the Services, you hereby submit to the exclusive jurisdiction of the American Arbitration Association (“AAA”) in connection with any dispute relating to, concerning or arising out of this Agreement. The arbitration will be conducted before a single arbitrator chosen by White Peak and will be held at the AAA location chosen by White Peak. Payment of all filing, administrative and arbitrator fees will be governed by the AAA’s rules, unless otherwise stated in this paragraph. In the event you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, White Peak will pay as much of your filing, administrative, and arbitrator fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. The arbitration before the AAA shall proceed solely on an individual basis without the right for any claims to be arbitrated on a class action basis or on bases involving claims brought in a purported representative capacity on behalf of others. The Federal Arbitration Act, and not any state arbitration law, governs all arbitration under this paragraph. All decisions rendered by the arbitrator will be binding and final. The arbitrator’s award is final and binding on all parties. The arbitrator’s authority to resolve and make written awards is limited to claims between you and White Peak alone. Claims may not be joined or consolidated unless agreed to in writing by all parties. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. If you initiate litigation or any other proceeding against White Peak in violation of this paragraph, you agree to pay White Peak’s reasonable costs and attorneys’ fees incurred in connection with our enforcement of this paragraph.

Independent Contractor
White Peak and User are independent contractors and nothing contained in this Agreement places White Peak and User in the relationship of principal and agent, partners or joint ventures. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.

Governing Law; Jurisdiction
Any controversy or claim arising out of or relating to this Agreement, the formation of this Agreement or the breach of this Agreement, including any claim based upon an alleged tort, shall be governed by the substantive laws of the State of Nevada. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

Disclaimer
White Peak shall not be responsible for any damages your business may suffer. White Peak makes no warranties of any kind, expressed or implied for the Services. White Peak disclaims any warranty of merchantability or fitness for a particular purpose, including loss of data resulting from delays, delivery failures, wrong deliveries, and any and all service interruptions caused by White Peak or our employees.

Backups and Data Loss
YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. White Peak’s backup service runs only for sites with less than 20GB of User Content and only once a week and overwrites any of our previous backups. Only one week of backups are kept at a time. This service is provided as a courtesy and may be modified or terminated at any time at White Peak’s sole discretion. White Peak does not maintain backups of accounts with 20GB or more of User Content so User must run their own backups. White Peak is not responsible for files and/or data residing on your account. EVEN THOUGH WE ARE PROVIDING THIS SERVICE AS A COURTESY TO YOU, YOU AGREE TO TAKE FULL RESPONSIBILITY FOR ALL FILES AND DATA TRANSFERRED AND TO MAINTAIN ALL APPROPRIATE BACKUP OF FILES AND DATA STORED ON WHITE PEAK’S SERVERS.

IF YOU ARE USING OUR HOSTING FOR YOUR EMAIL SERVICE, WE RECOMMEND THAT YOU RETAIN A COPY OF ALL OF YOUR MAILBOXES ON YOUR LOCAL DESKTOP. IF YOU RELY ON WEBMAIL EXCLUSIVELY FOR THE STORAGE OF YOUR EMAIL MAILBOX CONTENT, YOU DO SO AT YOUR OWN RISK AND WE DO NOT PROVIDE ANY WARRANTY OR ASSURANCES THAT YOUR MAILBOX CONTENTS WILL BE RETAINED BY US.

Any account using more than 20 gigs of disk space will be removed from our off site weekly backup with the exception of databases continuing to be backed up. All data will continue to be mirrored to a secondary drive to help protect against data loss in the event of a drive failure.

Limited Warranty
THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE BASIS.” EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, WHITE PEAK AND OUR AFFILIATES, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS DISCLAIM ALL WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, FOR THE SERVICES PROVIDED HEREUNDER. WHITE PEAK AND OUR AFFILIATES, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES (I) THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR COMPLETELY SECURE; (II) AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES; OR (III) AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION PROVIDED THROUGH THE SERVICES. WHITE PEAK AND OUR AFFILIATES, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS ARE NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM USERS OR STORED BY USERS ON OR THROUGH THE SERVICES. THE TERMS OF THIS SECTION SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT.

Disclosure to Law Enforcement
White Peak and our partners, vendors and contractors may disclose User information to law enforcement agencies without further consent or notification to the User upon lawful request from such agencies. We cooperate fully with law enforcement agencies.

Entire Agreement
This Agreement, including documents incorporated herein by reference, supersedes all prior discussions, negotiations and agreements between the parties with respect to the subject matter hereof, and this Agreement constitutes the sole and entire agreement between the parties with respect to the matters covered hereby.

Headings
The headings herein are for convenience only and are not part of this Agreement.

Changes to the Agreement or the Services

White Peak may modify, add, or delete portions of this Agreement at any time. If we have made significant changes to this Agreement, we will post a notice on the White Peak website for at least thirty (30) days after the changes are posted and will indicate at the bottom of this Agreement the date of the last revision. Any revisions to this Agreement will become effective when posted unless otherwise provided. You agree to any modification to this Agreement by continuing to use the Services after the effective date of any such modification.

White Peak reserves the right to modify, change, or discontinue any aspect of the Services at any time.

Severability
If any provision or portion of any provision of this Agreement is found to be illegal, invalid or unenforceable by a court of competent jurisdiction, the remaining provisions or portions (unless otherwise specified) thereof shall remain in full force and effect.

Waiver
No failure or delay by you or White Peak to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy preclude any other or further exercise of any right or remedy. No express waiver of, or assent to, any breach of or default in any term or condition of this Agreement by any party hereto shall constitute a waiver of, or an assent to, any succeeding breach of or default in the same or any other term or condition hereof.

Assignment; Successors
You may not assign or transfer this Agreement or any of your rights or obligations hereunder, without the prior written consent of White Peak. Any attempted assignment in violation of this Agreement shall be null and void and of no force or effect whatsoever. White Peak may assign our rights and obligations under this Agreement, and may engage subcontractors or agents in performing our duties and exercising our rights hereunder, without the consent of User. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.

Force Majeure
Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party’s reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, supply shortages or the failure of any third-party to perform any commitment relative to the production or delivery of any equipment or material required for such party to perform its obligations hereunder.

Third-Party Beneficiaries
Except as otherwise expressly provided in this Agreement, nothing in this Agreement is intended, nor shall anything herein be construed to confer any rights in any person other than the parties hereto and their respective successors and permitted assigns. Notwithstanding the foregoing, user acknowledges and agrees that any supplier of a third-party product or service that is identified as a third-party beneficiary in the service description, is an intended third-party beneficiary of the provisions set forth in this Agreement as they relate specifically to its products or services and shall have the right to enforce directly the terms and conditions of this Agreement with respect to its products or services against user as if it were a party to this Agreement.O