APPALOOSA MANAGED WEB HOSTING AGREEMENT

This Managed Web Hosting Agreement (the “Agreement”) governs managed website hosting and related services provided by Appaloosa Group, LLC (“Appaloosa,” “Appaloosa Tech,” “we,” “us,” or “our”).

PLEASE READ THIS AGREEMENT CAREFULLY. BY ORDERING, PURCHASING, PAYING FOR, ACCESSING, RECEIVING, OR USING THE HOSTING SERVICES, OR BY CONTINUING TO USE THE HOSTING SERVICES AFTER THE EFFECTIVE DATE OF THIS AGREEMENT OR AN UPDATED VERSION OF THIS AGREEMENT FOLLOWING APPLICABLE NOTICE, YOU AGREE TO BE BOUND BY THIS AGREEMENT.

This Agreement contains important provisions concerning backups, third-party software, security incidents, service availability, suspension and termination, warranty disclaimers, and limitations of liability.

AGREEMENT TERMS

1. CUSTOMER AND ACCEPTANCE OF AGREEMENT

1.1 Customer

“Customer” means any individual, business, organization, or other entity that orders, purchases, pays for, receives, accesses, or uses the Hosting Services.

If an individual accepts this Agreement on behalf of a business, organization, or other entity, that individual represents that he or she has authority to bind that entity to this Agreement.

1.2 Acceptance

Customer accepts this Agreement by ordering, purchasing, paying for, activating, receiving, accessing, or using the Hosting Services.

Where Appaloosa presents Customer with a checkbox, electronic acceptance button, order form, proposal, invoice, account activation process, or other mechanism expressly referencing this Agreement, Customer’s acceptance or completion of that process constitutes affirmative agreement to these terms.

For Customers already receiving Hosting Services when this Agreement becomes effective, continued use of the Hosting Services after the Effective Date constitutes acceptance of this Agreement after Appaloosa has provided reasonable notice and made the Agreement reasonably available.

1.3 Business Use

The Hosting Services are offered primarily for business and commercial use. Customer represents that Customer obtains and uses the Hosting Services primarily for business or commercial purposes and not primarily for personal, family, or household purposes, unless Appaloosa expressly agrees otherwise. Nothing in this Section waives any right or protection that applicable law does not permit to be waived.

1.4 Customer Data

“Customer Data” means data, records, files, information, content, or other materials submitted to, stored in, transmitted through, collected by, or processed through the Hosting Services by or on behalf of Customer or users of Customer’s Website, including Customer Content to the extent it constitutes data processed through the Hosting Services.

1.5 Incorporated Documents

The following documents are incorporated into this Agreement by reference when applicable:

1. the Customer’s applicable Service Plan, Service Order, quote, proposal, or other written description of the purchased Hosting Services;

2. Appaloosa’s Privacy Policy; and

3. any Data Processing Addendum (“DPA”) entered into between Appaloosa and Customer.

These documents may be made available on Appaloosa’s website, through Customer’s account, in a proposal or order, or by another reasonable means.

1.6 Order of Precedence

If there is a direct conflict among the documents governing the Hosting Services, a specifically negotiated or Customer-specific Service Order, proposal, or written amendment expressly accepted by Appaloosa and Customer will control to the extent of the direct conflict, followed by this Agreement.

The applicable Service Plan controls only with respect to plan-specific pricing, billing cycle, features, limits, entitlements, or service levels that it expressly establishes. A DPA will control to the extent of a direct conflict concerning personal-data processing obligations specifically governed by the DPA. Appaloosa’s Privacy Policy governs Appaloosa’s handling of personal information in its own capacity and does not modify the commercial terms of the Hosting Services.

HOSTING SERVICES

2. HOSTING SERVICES

2.1 Managed Hosting

Appaloosa provides managed website hosting services as described in this Agreement and the applicable Service Plan (the “Hosting Services”).

Depending on the applicable Service Plan, Hosting Services may include:

·website hosting infrastructure;

·web-server and runtime administration;

·database hosting;

·hosting platform administration;

·SSL certificate configuration or management;

·DNS management;

·monitoring;

·security tools and controls;

·automated backups;

·restoration services;

·WordPress maintenance;

·theme and plugin maintenance;

·malware scanning and remediation;

·hosting-related technical support;

·Website Support Units; and

·other services expressly identified in the applicable Service Plan.

Not every feature is included in every Service Plan.

2.2 Service Plans

The specific commercial terms of Customer’s Hosting Services may be identified in a Service Plan, proposal, quote, invoice, checkout page, account record, or Service Order.

Plan-specific terms may include:

·fees;

·billing frequency;

·number of Websites;

·storage or other resource allocations;

·Website Support Units;

·software licenses;

·support entitlements;

·additional backup features;

·additional security services;

·specialized services; and

·other plan-specific benefits or limitations.

2.3 Term, Renewal, and Billing Cycle

Unless the applicable Service Plan expressly states otherwise, Hosting Services begin when activated and continue on a month-to-month basis. Monthly billing is the default billing cycle for the Hosting Services.

If a Service Plan expressly provides for annual billing or another term longer than one month, the Hosting Services will continue for that stated term. Unless Customer cancels before the next renewal in accordance with this Agreement or the applicable Service Plan, the Hosting Services automatically renew for successive periods corresponding to the then-current billing cycle.

Customer is responsible for canceling the Hosting Services before the next renewal date if Customer does not want the Hosting Services to renew. Cancellation and termination are governed by Section 44.

2.4 Changes to Hosting Technology

Customer purchases a managed service and not the right to require Appaloosa to use any particular server, datacenter, control panel, web server, security product, backup platform, CDN, DNS provider, software stack, or other underlying technology unless expressly agreed otherwise.

Appaloosa may change, replace, upgrade, migrate, or reconfigure the technology used to provide the Hosting Services where reasonably appropriate for security, reliability, cost, performance, supportability, or operational reasons.

Appaloosa will use commercially reasonable efforts to avoid materially reducing an expressly included service feature through such changes.

RESPONSIBILITIES

3. APPALOOSA RESPONSIBILITIES

Appaloosa will use commercially reasonable efforts to manage the portions of the hosting environment under Appaloosa’s control.

Depending on the applicable Service Plan, Appaloosa’s responsibilities may include management of:

·server and hosting infrastructure under Appaloosa’s control;

·web-server configuration;

·database services;

·supported runtime environments;

·hosting management systems;

·SSL configuration;

·platform-level security tools;

·hosting monitoring;

·backups;

·WordPress maintenance;

·routine software updates;

·malware remediation; and

·other expressly included Hosting Services.

Appaloosa’s obligation to manage a service or technology does not constitute a guarantee that the service will be continuously available, error-free, fully secure, free from vulnerabilities, or always running the newest available version.

4. CUSTOMER RESPONSIBILITIES

Customer is responsible for matters within Customer’s control, including:

1.  the accuracy, legality, and appropriateness of Customer Content;

2.  obtaining rights and permissions necessary to use Customer Content;

3.  safeguarding Customer-controlled credentials;

4.  Customer-created accounts and users;

5.  access granted to employees, contractors, developers, agencies, vendors, and other third parties;

6.  custom code or software supplied or installed independently by Customer or Customer’s representatives;

7.  Customer-controlled integrations, accounts, APIs, and third-party services;

8.  complying with laws and regulations applicable to Customer’s business, content, products, services, and collection or use of information;

9.  maintaining independent archival copies of information that Customer cannot reasonably afford to lose;

10.  providing accurate account, contact, billing, and domain information;

11.  paying applicable Hosting Service, domain, software, and third-party charges when due; and

12.  promptly informing Appaloosa of suspected compromises, unauthorized access, security incidents, or other conditions requiring Appaloosa’s attention.

Customer will reasonably cooperate with Appaloosa regarding security, maintenance, troubleshooting, recovery, and compliance matters affecting the Hosting Services.

4.1 Authorized Contacts and Instructions

Customer is responsible for designating and maintaining accurate, current authorized account, billing, domain, and technical contacts.

Appaloosa may reasonably rely on requests and instructions received from Customer’s designated contacts, from an email address associated with Customer’s account, through an authenticated Customer account, or through credentials under Customer’s control, unless Appaloosa has reason to believe the request is unauthorized.

Customer is responsible for actions taken in reasonable reliance on instructions received from such authorized or authenticated sources. Appaloosa may require additional verification before making a sensitive, security-related, billing, domain, or other material change and may delay or decline a request where Appaloosa reasonably questions the request’s authenticity or authority.

WORDPRESS AND SOFTWARE

5. WORDPRESS, THEME, AND PLUGIN MAINTENANCE

5.1 Routine Updates

Where WordPress maintenance is included, Appaloosa will perform routine updates to supported WordPress core software, themes, plugins, and related Website software as Appaloosa reasonably determines appropriate.

5.2 No Continuous-Current-Version Guarantee

Appaloosa does not represent or warrant that WordPress, a theme, a plugin, a library, or other Website software will at all times be running the most recently released version.

Appaloosa may, in its reasonable technical judgment:

·delay an update;

·stage or test an update;

·decline an update;

·temporarily disable an update;

·disable affected software;

·roll back an update; or

·implement an alternative technical solution.

Appaloosa may take these actions when Appaloosa reasonably determines that doing so is appropriate because of security, compatibility, stability, performance, functionality, licensing, vendor, or support considerations.

5.3 Appaloosa-Caused Update Issues

If an update or other Website modification performed by Appaloosa directly causes a technical problem with the Website, reasonable troubleshooting, remediation, or rollback of that issue is included in Hosting Support.

This provision does not make Appaloosa responsible for unrelated defects, preexisting conditions, defects in the updated software itself, or incompatibilities that could not reasonably have been anticipated.

6. THIRD-PARTY SOFTWARE

WordPress, themes, plugins, libraries, APIs, and other software used in connection with a Website may be developed, maintained, licensed, or controlled by third parties.

Appaloosa does not control and does not warrant:

·the continued availability of third-party software;

·the security of third-party software;

·the absence of vulnerabilities;

·the frequency or timing of vendor updates;

·continued compatibility;

·continued development or support;

·continued availability of vendor licensing;

·third-party API behavior;

·third-party pricing; or

·continued functionality after a third party modifies or discontinues a product.

Appaloosa may disable, remove, replace, or recommend replacement of software that Appaloosa reasonably believes creates a security, stability, compatibility, licensing, or operational risk.

7. SOFTWARE LICENSING

7.1 Divi

Where the Website uses the Divi theme and the applicable Service Plan does not state otherwise, Appaloosa may provide the Website with use of Appaloosa’s applicable Divi license while the Website remains eligible for the Hosting Services.

Customer receives no ownership interest in Appaloosa’s Divi license or license credentials.

7.2 Specifically Included Plugins

If a commercial plugin or other software product is expressly identified as included in Customer’s Service Plan, Appaloosa may provide the applicable license while Customer remains eligible for that benefit.

7.3 Customer-Licensed Software

Unless otherwise expressly stated, Customer is responsible for obtaining and maintaining licenses for themes, plugins, applications, services, or other commercial software selected or supplied by Customer.

Expiration of a Customer-maintained license may prevent updates, support, or continued functionality.

7.4 Discretionary Appaloosa Licenses

Appaloosa may from time to time make additional software licenses available to a Website even though those licenses are not expressly included in Customer’s Service Plan.

Providing such a license does not create a continuing contractual entitlement.

Appaloosa may change, discontinue, or replace a discretionary software license at Appaloosa’s discretion. Where reasonably practicable, Appaloosa will provide notice before discontinuing a discretionary license if doing so is expected to materially affect Website functionality.

Appaloosa may require Customer to purchase its own license in order to continue using the affected software.

7.5 End of Hosting

Unless otherwise expressly agreed, Customer’s right to use an Appaloosa-provided software license ends when Customer is no longer eligible for that license through the Hosting Services.

Customer is responsible for acquiring replacement licenses if Customer wishes to continue using affected software after termination or migration.

Appaloosa is not required to provide Customer with Appaloosa’s master license keys, account credentials, vendor accounts, or other credentials belonging to Appaloosa.

SUPPORT

8. INCLUDED HOSTING SUPPORT

Unless the applicable Service Plan states otherwise, Hosting Services include reasonable technical support for:

·technical problems with Appaloosa’s hosting platform;

·hosting configuration under Appaloosa’s management;

·Appaloosa-managed SSL;

·Appaloosa-managed DNS issues;

·backup or restore issues;

·hosting availability issues; and

·WordPress problems directly caused by work performed by Appaloosa.

Hosting Support does not constitute unlimited website-development, consulting, or information-technology support.

9. EXCLUDED SUPPORT AND ADDITIONAL SERVICES

Unless expressly included in a Service Plan, Hosting Services do not include:

·Website redesigns;

·new Website development;

·substantial new page builds;

·custom programming;

·custom theme or plugin development;

·substantial content entry;

·bulk product or data entry;

·complex integrations;

·marketing services;

·significant SEO projects;

·troubleshooting unrelated third-party services;

·support for Customer computers or mobile devices;

·printers or local office equipment;

·local networks;

·unrelated email systems;

·unrelated SaaS platforms;

·general IT consulting; or

·other work unrelated to the Hosting Services.

Appaloosa may offer such services separately and may require a separate quote, Service Order, or charge.

10. WEBSITE SUPPORT UNITS

10.1 Plan Allowance

A Service Plan may include a stated number of Website Support Units during each billing period.

10.2 Typical Unit

One Website Support Unit generally represents either:

1.  one discrete, routine modification to an existing Website; or

2.  one discrete tutorial or support session concerning the Customer’s Website or an Appaloosa-managed service.

A Website Support Unit is generally intended for limited-scope work that would ordinarily require approximately thirty (30) minutes or less.

The thirty-minute reference is a scope guideline and does not convert Website Support Units into a bank of prepaid labor hours.

10.3 Determination of Units

Appaloosa will determine, in its reasonable discretion, the number of Website Support Units applicable to a request.

Appaloosa may consider:

·scope;

·complexity;

·estimated effort;

·number of pages affected;

·number of components affected;

·number of distinct requested tasks;

·testing requirements;

·troubleshooting requirements;

·dependencies; and

·technical risk.

A single message, ticket, email, or request may contain multiple Website Support Units.

Combining multiple tasks into one request does not make those tasks one Unit.

10.4 Excluded Projects

Website Support Units are not intended for:

·complete Website redesigns;

·new Website development;

·substantial page design;

·custom programming;

·complex integrations;

·bulk content or data entry;

·extensive troubleshooting;

·unrelated IT support;

·substantial SEO or marketing projects; or

·other work that Appaloosa reasonably determines exceeds the intended scope of a routine Website Support Unit.

Appaloosa may provide a separate quote for work outside the Unit allowance.

10.5 Tutorials

A tutorial Unit may include reasonable instruction concerning:

·Customer’s Website;

·WordPress;

·Website functionality; or

·a service or feature managed by Appaloosa.

Tutorial Units do not include unlimited consulting or general support for unrelated computers, networks, devices, accounts, applications, or third-party IT systems.

10.6 Expiration

Unless a Service Plan expressly states otherwise:

·unused Website Support Units expire at the end of the applicable billing period;

·Units do not roll over;

·Units have no cash or refund value; and

·Units may not be exchanged for unrelated professional services.

BACKUPS AND RESTORATION

11. AUTOMATED BACKUPS

11.1 Backup Schedule

Appaloosa’s backup systems are configured to perform at least one automated backup per day of supported Website files and databases.

Appaloosa may perform backups more frequently.

11.2 Retention

Backups are generally maintained on a rolling basis for approximately thirty (30) days unless the applicable Service Plan states otherwise.

As newer backups are created, older backups may automatically expire or be overwritten.

11.3 Recovery Service, Not Archive

Appaloosa’s backup system is intended primarily for disaster recovery and operational restoration.

It is not intended to serve as:

·permanent archival storage;

·Customer’s exclusive record-retention system;

·document management;

·long-term legal retention; or

·a substitute for independent Customer backups.

12. BACKUP LIMITATIONS

Although Appaloosa maintains backup systems, Appaloosa does not warrant or guarantee that:

·every scheduled backup will successfully complete;

·every Website component will be included in every backup;

·every backup will be uncorrupted;

·every backup will be restorable;

·every historical configuration will remain available; or

·restoration will recover data created or changed after the applicable restore point.

Customer is responsible for maintaining independent copies of information that is:

·irreplaceable;

·legally required to be retained;

·business-critical;

·subject to specialized retention requirements; or

·needed beyond Appaloosa’s normal retention period.

13. RESTORATION

Customer may request restoration from an available restore point.

Appaloosa will use commercially reasonable efforts to restore available Website data from a suitable backup.

Where multiple restore points are available, Appaloosa may consider Customer’s preferred restore point.

Restoration may result in the loss of changes, orders, content, records, transactions, or other data created after the selected backup.

Routine restoration associated with a hosting failure, malware remediation, or an Appaloosa-caused issue is included where applicable. Repeated discretionary restoration requests, complex recovery, or recovery work outside the ordinary Hosting Services may require Website Support Units or separate fees.

SECURITY

14. SECURITY MEASURES

Appaloosa will use commercially reasonable administrative and technical safeguards appropriate to the nature of the Hosting Services.

Such safeguards may include, as Appaloosa considers appropriate:

·access controls;

·hosting infrastructure maintenance;

·security updates;

·firewalls;

·malware or threat-detection tools;

·monitoring;

·credential controls;

·encrypted communications;

·access logging; and

·other security measures.

Security technologies and practices may change over time.

No Internet-connected system can be guaranteed to be completely secure, and Appaloosa does not warrant that a Website or hosting environment will never be compromised.

15. SHARED SECURITY RESPONSIBILITY

Security is a shared responsibility.

Customer remains responsible for security matters within Customer’s reasonable control, including:

·protecting Customer credentials;

·maintaining appropriate access permissions;

·Customer-created administrator accounts;

·access granted to employees, contractors, developers, agencies, or third parties;

·Customer-controlled integrations;

·Customer-controlled external accounts;

·Customer-supplied custom code;

·independently installed software;

·Customer business processes; and

·unnecessary storage of sensitive information.

Customer must promptly cooperate with reasonable security measures requested by Appaloosa where necessary to protect the Website, Customer Data, Appaloosa, or other customers.

MALWARE

16. MALWARE PROTECTION AND REMEDIATION

Unless the applicable Service Plan expressly states otherwise, reasonable malware remediation is included as part of the Hosting Services.

Appaloosa may take reasonable actions including:

·malware scanning;

·removing malicious files or code;

·cleaning affected Website files;

·restoring a Website from an available backup;

·disabling compromised software;

·disabling plugins or themes;

·resetting credentials;

·restricting access;

·quarantining a Website or Website component;

·replacing compromised files;

·blocking malicious traffic; and

·implementing other reasonable remediation measures.

Customer authorizes Appaloosa to take prompt protective action when Appaloosa reasonably believes a Website is compromised or presents a security threat.

17. MALWARE REMEDIATION LIMITATIONS

Malware remediation does not constitute a guarantee that:

·malware will never reach the Website;

·every malicious file or action will be detected;

·all malware can be removed;

·every Website can be restored;

·all Customer Data can be recovered;

·the source or identity of an attacker can be determined; or

·reinfection will not occur.

Unless separately agreed, included malware remediation does not include:

·formal digital forensics;

·forensic evidence preservation;

·expert-witness services;

·regulatory investigations;

·legal analysis;

·breach-notification services;

·reconstruction of unavailable Customer Data;

·redevelopment of defective or compromised custom applications; or

·unlimited remediation of a vulnerability that Customer refuses or is unable to correct.

Appaloosa may require removal, replacement, licensing, updating, or discontinuation of software or practices that Appaloosa reasonably determines create an ongoing security risk.

If Customer refuses reasonable corrective action and the same condition causes repeated compromise, Appaloosa may restrict or suspend the affected service or treat additional remediation as separately billable work.

SECURITY INCIDENTS AND DATA BREACHES

18. SECURITY INCIDENTS

For purposes of this Agreement, a “Security Incident” means unauthorized access to, acquisition of, use of, disclosure of, or material compromise of Customer Data maintained through the Hosting Services.

A Security Incident does not include, by itself:

·an unsuccessful login attempt;

·a blocked intrusion attempt;

·automated scanning;

·an unsuccessful probe;

·a denied request;

·an unsuccessful denial-of-service attempt; or

·another event that does not result in unauthorized access to or compromise of Customer Data.

19. SECURITY INCIDENT RESPONSE

If Appaloosa discovers a Security Incident materially affecting Customer Data, Appaloosa will:

1.  take commercially reasonable steps to investigate, contain, and remediate the Security Incident;

2.  notify Customer without unreasonable delay and no later than required by applicable law;

3.  provide reasonably available information necessary for Customer to understand the nature and known impact of the Security Incident; and

4.  reasonably cooperate with Customer concerning legally required response activities.

Appaloosa may take immediate protective measures, including:

·restricting access;

·isolating systems;

·suspending services;

·resetting credentials;

·restoring backups;

·disabling vulnerable software;

·blocking traffic; or

·taking other actions reasonably necessary to contain or mitigate the event.

20. CUSTOMER RESPONSIBILITIES FOLLOWING A SECURITY INCIDENT

Except where applicable law directly imposes an obligation on Appaloosa, Customer remains responsible for determining and satisfying Customer’s legal and regulatory obligations arising from Customer’s collection, ownership, or use of Customer Data.

These obligations may include notifications to:

·Customer’s customers;

·users;

·employees;

·affected individuals;

·regulators;

·payment processors;

·insurers;

·business partners; and

·other required recipients.

Nothing in this Agreement relieves Appaloosa of a notification or other obligation directly imposed on Appaloosa by applicable law.

21. SPECIALIZED REGULATORY COMPLIANCE

Unless expressly stated in a Service Plan, Data Processing Addendum, Business Associate Agreement, or other separate written agreement, Appaloosa does not represent or warrant that the standard Hosting Services satisfy any specialized regulatory or industry-specific compliance regime.

This includes, without limitation, requirements specific to:

·HIPAA;

·PCI DSS certification or compliance obligations beyond those independently applicable to Appaloosa;

·financial-services regulation;

·government security frameworks;

·defense-related requirements;

·specialized medical-data requirements; or

·other industry-specific compliance programs.

Customer may not use the standard Hosting Services to store or process information requiring specialized contractual, regulatory, or security safeguards unless Appaloosa has expressly agreed in writing to support those requirements and any required additional agreement is in effect. Customer must notify Appaloosa before any proposed use that may require specialized compliance obligations.

SERVICE AVAILABILITY

22. SERVICE AVAILABILITY COMMITMENT

22.1 Monthly Availability Commitment

Appaloosa will use commercially reasonable efforts to maintain 99.9% Monthly Availability for each Website covered by the Hosting Services, subject to the exclusions and limitations contained in this Agreement.

The availability commitment applies to the availability of the Appaloosa-managed hosting environment and does not constitute a guarantee that every Website feature, application, plugin, integration, or third-party service will function without interruption.

22.2 Availability

For purposes of this Agreement, a Website is considered “Available” when the Appaloosa-managed hosting environment is capable of accepting and responding to HTTP or HTTPS requests from external networks.

A Website will not be considered unavailable solely because a particular page, plugin, theme, administrative function, form, integration, email function, API, payment service, or other Website feature is unavailable while the Appaloosa-managed hosting environment remains capable of serving the Website.

22.3 Downtime

“Downtime” means a period during which a Website is unable to accept or respond to HTTP or HTTPS requests as a direct result of a failure of Appaloosa-controlled Hosting Services.

An interruption does not constitute Downtime merely because an individual Customer, Internet connection, geographic region, monitoring location, third-party service, Website component, or other system outside Appaloosa’s reasonable control is unable to access or use the Website.

22.4 Downtime Period

A “Downtime Period” occurs when a qualifying condition of Downtime:

1. is detected from at least two geographically separate external monitoring locations; and

2. persists for at least five (5) consecutive minutes.

Appaloosa’s monitoring systems will ordinarily test Website or hosting availability at intervals of approximately sixty (60) seconds.

Once an interruption satisfies the five-consecutive-minute requirement, the Downtime Period will be measured beginning with the first failed qualifying monitoring interval and ending with the first subsequent successful monitoring interval.

Isolated, intermittent, or temporary failures that do not persist for at least five consecutive minutes do not constitute a Downtime Period.

22.5 Qualifying Downtime

“Qualifying Downtime” means Downtime that occurs as part of a Downtime Period and is not excluded under Section 23. “Qualifying Downtime Minutes” means the total number of minutes of Qualifying Downtime used in the Monthly Availability calculation.

22.6 Monitoring Methodology

Appaloosa may use a combination of external Website monitoring, origin or infrastructure monitoring, application health checks, server monitoring, logs, network information, and other reasonably reliable technical evidence to determine whether an interruption constitutes Downtime.

Appaloosa may monitor both:

·public accessibility of the Website; and

·availability of the Appaloosa-controlled hosting origin or infrastructure.

Where a Website is publicly inaccessible but Appaloosa’s hosting infrastructure remains operational, Appaloosa may determine that the interruption resulted from an excluded third-party service, Customer configuration, or other cause outside the Appaloosa-controlled Hosting Services.

Appaloosa is not required to use any particular monitoring vendor, software product, server location, or monitoring provider and may change its monitoring technology from time to time.

22.7 Monthly Availability Calculation

Monthly Availability will be calculated for each calendar month as follows:

Monthly Availability = ((Total Minutes in the Month − Qualifying Downtime Minutes) ÷ Total Minutes in the Month) × 100

Interruptions excluded under Section 23 do not count as Qualifying Downtime Minutes.

For Customers whose Hosting Services begin or end during a calendar month, Appaloosa may calculate Monthly Availability using only the period during which the applicable Hosting Services were active.

22.8 Monitoring Records

Appaloosa’s monitoring records, system logs, and other technical records will be the primary sources used to determine Monthly Availability and the cause and duration of any Downtime Period.

Appaloosa may also consider reasonably reliable evidence supplied by Customer when investigating a claimed outage.

Appaloosa will make availability determinations reasonably and in good faith based on the available technical evidence.

23. AVAILABILITY EXCLUSIONS

A service interruption does not constitute Downtime, and will not reduce Monthly Availability, to the extent caused by or resulting from circumstances outside the failure of Appaloosa-controlled Hosting Services, including:

·Scheduled Maintenance;

·Emergency Maintenance;

·acts or omissions of Customer or Customer’s employees, contractors, developers, agencies, vendors, or other representatives;

·Customer-controlled configurations;

·Customer-controlled DNS changes;

·Customer custom code;

·unsupported, defective, compromised, or incompatible themes or plugins;

·failures of Website functionality that do not make the Appaloosa-managed hosting environment unavailable;

·Customer-controlled third-party services or accounts;

·suspension, isolation, throttling, or restriction permitted under this Agreement;

·violations of Section 31 (Acceptable Use), or actions reasonably taken to address abuse;

·denial-of-service or distributed denial-of-service attacks beyond Appaloosa’s reasonable ability to prevent or mitigate;

·qualifying sophisticated cybersecurity attacks or other qualifying cybersecurity events described under the Force Majeure provisions of this Agreement;

·upstream Internet or network routing failures outside Appaloosa’s reasonable control;

·failures of datacenter, infrastructure, network, or telecommunications providers outside Appaloosa’s reasonable control;

·CDN or third-party DNS-provider failures;

·domain registrar or registry failures;

·third-party API or software-service outages;

·utility or power failures outside Appaloosa’s reasonable control;

·Force Majeure Events;

·Customer’s failure to comply with reasonable technical or security requirements communicated by Appaloosa; or

·another event outside Appaloosa’s reasonable control that does not result from a failure of Appaloosa-controlled Hosting Services.

A third-party failure may be excluded even where that failure causes the Website to become publicly inaccessible, provided that the Appaloosa-controlled Hosting Services remain operational or the underlying failure is otherwise outside Appaloosa’s reasonable control.

Nothing in this Section excuses Appaloosa from responsibility for an interruption directly caused by Appaloosa’s own failure to provide the Hosting Services in accordance with this Agreement.

24. SERVICE CREDITS AND EXCLUSIVE AVAILABILITY REMEDY

24.1 Eligibility for Service Credit

If Monthly Availability for a Website falls below 99.9% during a calendar month as a result of Qualifying Downtime, Customer may request an account credit for the affected Hosting Services.

Only Qualifying Downtime as determined under Sections 22 and 23 is eligible for a service credit.

24.2 Credit Request

To request a service credit, Customer must notify Appaloosa within thirty (30) days following the end of the calendar month in which the Qualifying Downtime occurred.

The request should reasonably identify:

·the affected Website;

·the approximate date and time of the outage; and

·any information reasonably available to Customer concerning the interruption.

Appaloosa may review its monitoring records, system logs, incident records, and other reasonably available information when evaluating the request.

24.3 Service Credit Amount

If Customer is eligible for a service credit, the credit will be calculated according to the Monthly Availability of the affected Website during the applicable calendar month:

The applicable Service Credit percentage will be applied to the monthly recurring Hosting Service fee attributable to the affected Website.

For Hosting Services billed annually or for another period longer than one month, the monthly recurring Hosting Service fee will be determined by dividing the recurring Hosting Service fee by the number of months covered by that billing period.

If a single Service Plan covers multiple Websites without separately stated per-Website Hosting Service fees, the monthly recurring Hosting Service fee will be allocated equally among the Websites covered by that Service Plan unless the Service Plan expressly provides another allocation method.

If multiple Websites covered by the same Service Plan experience the same or separate periods of Qualifying Downtime during a calendar month, the Service Credit will be calculated using the portion of the monthly recurring Hosting Service fee attributable to each affected Website.

In no event will the aggregate Service Credits for a calendar month exceed one hundred percent (100%) of the recurring monthly Hosting Service fee paid or payable for the affected Service Plan.

For purposes of calculating Service Credits, recurring Hosting Service fees exclude:

·domain registration or renewal fees;

·software or licensing charges separately stated from the Hosting Services;

·separately purchased Website Support Units or additional support charges;

·website design, development, migration, consulting, or other professional-service fees;

·usage, overage, or other variable charges;

·taxes;

·one-time fees; and

·charges for other products or services not directly attributable to the affected Hosting Services.

24.4 Application of Credits

Service Credits:

·will be applied to Customer’s account or future Hosting Service charges;

·are not redeemable for cash;

·are not transferable;

·have no independent cash value; and

·may not exceed the amount permitted under Section 24.3.

Customer must generally be current on undisputed Hosting Service charges in order to receive a Service Credit.

A Service Credit does not extend the term of any domain registration, software license, third-party service, or other product or service not included in the recurring Hosting Service fee against which the credit is applied.

24.5 Sole and Exclusive Availability Remedy

A Service Credit under this Section is Customer’s sole and exclusive remedy for Appaloosa’s failure to satisfy the Monthly Availability commitment.

Customer is not entitled to recover damages based solely on an availability failure for:

·lost sales;

·lost transactions;

·lost revenue;

·lost profits;

·business interruption;

·loss of business opportunity;

·loss of goodwill; or

·other indirect, incidental, special, or consequential losses.

This Section does not expand or modify the broader disclaimers or limitations of liability contained elsewhere in this Agreement.

25. SCHEDULED AND EMERGENCY MAINTENANCE

25.1 Scheduled Maintenance

Appaloosa may perform Scheduled Maintenance as reasonably necessary to:

·maintain the Hosting Services;

·install updates or upgrades;

·improve performance or reliability;

·migrate infrastructure;

·maintain security;

·replace or modify underlying technology; or

·perform other reasonable hosting maintenance.

Scheduled Maintenance does not constitute Downtime for purposes of the Monthly Availability calculation.

Where reasonably practicable, Appaloosa will provide advance notice of Scheduled Maintenance that Appaloosa reasonably expects to cause a material interruption to Website availability.

Routine maintenance that does not materially affect Website availability does not require advance notice.

25.2 Emergency Maintenance

Appaloosa may perform Emergency Maintenance without advance notice when Appaloosa reasonably determines that immediate action is necessary to:

·address or mitigate a security threat;

·prevent or mitigate service disruption;

·respond to a vulnerability;

·protect Customer Data;

·protect Appaloosa’s systems or infrastructure;

·protect other customers or third parties;

·respond to an active or suspected compromise;

·address an urgent technical condition; or

·comply with applicable legal or regulatory requirements.

Emergency Maintenance does not constitute Downtime for purposes of the Monthly Availability calculation when the maintenance is reasonably necessary under the circumstances.

Appaloosa will use commercially reasonable efforts to minimize the duration and impact of Scheduled Maintenance and Emergency Maintenance.

THIRD-PARTY SERVICES

26. THIRD-PARTY DEPENDENCIES

The Hosting Services may rely on products, infrastructure, networks, software, or services provided by third parties, including:

·datacenter operators;

·server or infrastructure providers;

·Internet carriers;

·CDN providers;

·DNS providers;

·domain registrars;

·software developers;

·WordPress;

·theme and plugin vendors;

·API providers;

·payment processors;

·security providers; and

·other vendors.

Appaloosa will use commercially reasonable efforts to manage and respond to issues involving third-party dependencies that are part of the Hosting Services, but Appaloosa does not control and cannot guarantee the performance, availability, security, policies, pricing, functionality, or continued operation of third-party services.

A failure by a third-party service does not automatically constitute a breach of this Agreement by Appaloosa.

DOMAINS AND DNS

27. DOMAIN OWNERSHIP

Customer owns or controls its Domain Name, subject to the terms, policies, and requirements of the applicable registrar and registry.

Appaloosa’s registration, administration, technical management, or payment processing for a Domain Name does not transfer ownership of the Domain Name to Appaloosa.

Where reasonably practicable, domain registration information should identify Customer or the appropriate Customer-controlled party as the registrant or beneficial domain owner.

28. DOMAIN MANAGEMENT

Where included, Customer authorizes Appaloosa to act as Customer’s technical or administrative intermediary for activities such as:

·domain registration;

·renewal;

·DNS configuration;

·nameserver management;

·registrar communications; and

·other domain-management activities.

Domain services remain subject to applicable registrar, registry, ICANN, and other governing policies and requirements.

29. DOMAIN RENEWALS

Customer is ultimately responsible for:

·domain renewal costs;

·providing accurate information;

·maintaining required contact information;

·timely payment;

·responding to registrar requirements; and

·complying with applicable registration rules.

Where Appaloosa invoices or collects payment for a domain renewal as an intermediary, Customer must provide required information and payment sufficiently in advance of expiration.

Appaloosa is not liable for expiration, suspension, deletion, loss, or interruption of a Domain Name resulting from Customer’s failure to:

·timely pay required charges;

·provide accurate information;

·respond to requests;

·maintain valid contact information; or

·satisfy registrar or registry requirements.

This exclusion does not apply where Appaloosa expressly agreed to process a renewal, received all required information and payment in a timely manner, and Appaloosa itself failed to submit or process the renewal as agreed. Any liability arising from such an Appaloosa failure remains subject to the limitations of liability contained in this Agreement to the fullest extent permitted by law.

30. HOSTING CANCELLATION DOES NOT CANCEL DOMAIN

Cancellation, termination, or expiration of Hosting Services does not automatically cancel, surrender, delete, transfer, relinquish, or otherwise terminate Customer’s Domain Name.

Domain-management or registration services may continue separately where applicable and may be subject to separate fees.

Customer may request transfer or management changes subject to:

·applicable registrar or registry restrictions;

·security requirements;

·mandatory transfer locks;

·verification requirements; and

·amounts properly due for domain-related services.

ACCEPTABLE USE AND RESOURCE MANAGEMENT

31. ACCEPTABLE USE

31.1 General Acceptable Use

Customer may use the Hosting Services only for lawful purposes and in a manner that does not unreasonably interfere with, damage, disrupt, or create a material risk to:

·Appaloosa;

·the Hosting Services;

·Appaloosa’s infrastructure or networks;

·other customers;

·third-party systems or networks; or

·the security, availability, integrity, or reputation of any affected service.

Customer may not use, or permit the Hosting Services to be used, for unlawful, fraudulent, abusive, malicious, or materially disruptive activity.

31.2 Prohibited Activities

Without limiting Section 31.1, Customer may not use or permit the Hosting Services to be used to:

·create, distribute, host, transmit, install, or facilitate malware, ransomware, viruses, malicious scripts, malicious code, or other harmful software;

·conduct, facilitate, or support phishing, credential theft, identity theft, impersonation, fraud, or deceptive activity;

·send unsolicited bulk email, spam, or other communications in violation of applicable law or generally accepted anti-abuse practices;

·operate, control, support, or participate in a botnet or similar malicious network;

·initiate, facilitate, or participate in a denial-of-service or distributed denial-of-service attack;

·attack, disrupt, interfere with, overload, or impair another computer, network, application, account, or service;

·access or attempt to access a system, network, account, service, or data without authorization;

·conduct vulnerability scanning, penetration testing, port scanning, probing, or similar security testing against systems that Customer is not authorized to test;

·circumvent, disable, interfere with, or attempt to defeat authentication systems, access controls, rate limits, security protections, monitoring, or other technical safeguards;

·forge headers, source information, identities, or other technical information for fraudulent, deceptive, or abusive purposes;

·host or distribute content or materials that Customer does not have the legal right to use, including material that unlawfully infringes intellectual-property, privacy, publicity, or other third-party rights;

·use the Hosting Services in violation of applicable law, regulation, court order, or governmental requirement;

·use the Hosting Services in a manner that materially damages or threatens the reputation of Appaloosa-controlled IP addresses, domains, networks, email systems, or other infrastructure;

·use the Hosting Services to operate an open proxy, open relay, or similar publicly accessible service that creates an unreasonable security or abuse risk;

·use the Hosting Services for cryptocurrency mining or other computationally intensive activity unrelated to the normal operation of the hosted Website unless expressly authorized by Appaloosa;

·knowingly facilitate activity that materially threatens the security or integrity of Appaloosa, another customer, or a third party; or

·assist, encourage, or knowingly permit another person to engage in activity prohibited by this Section.

31.3 Customer Responsibility for Users and Access

Customer is responsible for activity performed through Customer’s Website, Hosting Services, accounts, or credentials by persons to whom Customer grants or permits access, including:

·employees;

·officers;

·contractors;

·developers;

·agencies;

·vendors;

·administrators;

·authorized users; and

·other representatives.

Customer may not avoid responsibility under this Agreement solely because prohibited activity was performed by a person Customer authorized to access the Website or Hosting Services.

Customer must use reasonable care when granting administrative or technical access and must promptly revoke access that is no longer required.

Customer must promptly notify Appaloosa if Customer becomes aware of:

·compromised credentials;

·unauthorized administrative access;

·malware;

·phishing;

·spam;

·abuse originating from the Website;

·unauthorized use of the Hosting Services; or

·another condition that may materially threaten the Hosting Services or third parties.

31.4 Customer Content and Legal Responsibility

Customer is responsible for Customer Content and for determining whether Customer’s Website, products, services, communications, and business activities comply with applicable law.

Appaloosa does not undertake a general obligation to monitor, review, or approve Customer Content or Customer’s business activities.

The receipt of a complaint, allegation, abuse report, or third-party notice does not by itself establish that Customer has violated this Agreement. Appaloosa may investigate such reports and make a reasonable determination based on the available information.

31.5 Investigation and Cooperation

Appaloosa may investigate suspected:

·security threats;

·abusive activity;

·unlawful use;

·spam or phishing;

·malware;

·resource abuse;

·network attacks;

·intellectual-property complaints; or

·other suspected violations of this Agreement.

Customer agrees to reasonably cooperate with Appaloosa in investigating and resolving suspected abuse or security issues involving Customer’s Hosting Services.

Appaloosa may request that Customer take reasonable corrective measures, including:

·changing credentials;

·removing or disabling content;

·disabling or replacing vulnerable software;

·correcting Website configuration;

·stopping abusive communications;

·restricting user access;

·addressing compromised accounts; or

·implementing other reasonable remediation.

31.6 Protective and Enforcement Actions

Where Appaloosa reasonably determines that Customer’s Website, account, content, software, traffic, or use of the Hosting Services violates this Agreement or presents a material risk to Appaloosa, another customer, a third party, or the Hosting Services, Appaloosa may take reasonable protective action.

Such action may include:

·blocking or filtering traffic;

·disabling particular functionality;

·disabling or removing malicious software or files;

·restricting access;

·changing or requiring changes to credentials;

·throttling abusive activity;

·isolating a Website;

·temporarily suspending some or all Hosting Services;

·requiring remediation;

·terminating Hosting Services in cases of serious or repeated violations; or

·taking other reasonably necessary protective measures.

Where reasonably practicable and where immediate action is not necessary to protect security, infrastructure, or third parties, Appaloosa will attempt to notify Customer and provide a reasonable opportunity to correct the issue before suspending or terminating Hosting Services.

Appaloosa may take immediate action without prior notice where Appaloosa reasonably determines that delay would create a material security, legal, operational, or abuse risk.

Any suspension, restriction, isolation, or other protective action permitted under this Section does not constitute Downtime for purposes of the Service Availability commitment.

31.7 Legal and Third-Party Requests

Appaloosa may take action reasonably necessary to comply with:

·applicable law;

·a valid court order;

·subpoena;

·governmental requirement;

·law-enforcement request where legally binding;

·registrar, registry, network-provider, or infrastructure-provider requirements; or

·another legally enforceable obligation.

Nothing in this Section requires Appaloosa to take action based solely on an unsupported third-party allegation where Appaloosa is not legally required to do so.

32. RESOURCE USE AND FAIR USE

32.1 Reasonable Resource Use

Customer must use the Hosting Services in a manner reasonably consistent with the normal operation of the Website and the applicable Service Plan.

Customer may not use Hosting Services in a manner that materially threatens or degrades the:

·security;

·stability;

·performance;

·integrity; or

·availability

of Appaloosa’s infrastructure, the Hosting Services, or services provided to other customers.

32.2 Plan-Specific Resource Limits

A Service Plan may establish limitations or allocations relating to:

·storage;

·processor or CPU use;

·memory;

·bandwidth;

·database resources;

·database size;

·processes;

·concurrent connections;

·traffic;

·file counts;

·email or message volume;

·backup usage; or

·other technical resources.

Customer must comply with any resource limitations expressly stated in the applicable Service Plan.

32.3 Fair Use Where No Numerical Limit Is Stated

The absence of a stated numerical limit does not mean that a resource is unlimited or may be used without regard to its effect on the Hosting Services.

Where a Service Plan does not state a specific numerical limit, Customer may use the applicable resource subject to reasonable and normal Website use and the requirement that such use not materially interfere with Appaloosa’s infrastructure or other customers.

Appaloosa will not ordinarily restrict temporary or occasional increases in resource usage that do not create a material operational concern.

32.4 Excessive or Abnormal Resource Use

Appaloosa may take reasonable action if Customer’s resource usage:

·materially affects the performance or availability of other customers;

·materially threatens infrastructure stability;

·creates an unreasonable security risk;

·causes or contributes to repeated service degradation;

·is substantially inconsistent with the intended use of Customer’s Service Plan;

·results from malfunctioning, compromised, or abusive software; or

·otherwise creates a material operational risk.

Where circumstances permit, Appaloosa will attempt to contact Customer before taking restrictive action and work with Customer to identify a reasonable solution.

32.5 Corrective Measures

Where excessive, abnormal, or harmful resource usage occurs, Appaloosa may reasonably require or perform measures including:

·Website or database optimization;

·caching or performance improvements;

·removal or correction of abusive processes;

·removal or replacement of defective software;

·malware or security remediation;

·traffic filtering;

·temporary resource restrictions;

·rate limiting or throttling;

·migration to different infrastructure;

·a Service Plan upgrade;

·purchase of additional resources; or

·another reasonable technical solution.

Where immediate action is reasonably necessary to protect the Hosting Services, infrastructure, other customers, or third parties, Appaloosa may temporarily restrict or suspend the affected resource or Website before notifying Customer.

32.6 Service Plan Upgrades

Appaloosa may recommend or require a Service Plan upgrade when Customer’s sustained resource requirements materially exceed the reasonable capacity or intended use of the current Service Plan.

Appaloosa will not use this provision solely to require an upgrade because of an isolated or insignificant temporary increase in Website traffic or resource usage.

Where practical, Appaloosa will provide Customer with information regarding the condition giving rise to the required upgrade and a reasonable opportunity to select an appropriate solution.

CUSTOMER CONTENT AND INTELLECTUAL PROPERTY

33. CUSTOMER CONTENT

“Customer Content” means content, data, text, images, media, products, files, databases, and other materials supplied, created, uploaded, or controlled by Customer.

As between Appaloosa and Customer, Customer retains its rights in Customer Content.

Customer represents that Customer has the rights and permissions necessary to host, publish, process, transmit, and otherwise use Customer Content through the Hosting Services.

Nothing in this Agreement determines ownership of Website design or development materials subject to a separate Website design, development, licensing, or intellectual-property agreement.

34. LIMITED LICENSE TO HOST CUSTOMER CONTENT

Customer grants Appaloosa a limited, nonexclusive license to:

·host;

·copy;

·reproduce;

·cache;

·transmit;

·process;

·back up;

·restore; and

·technically modify where reasonably necessary for delivery,

Customer Content solely as reasonably necessary to provide, secure, maintain, support, troubleshoot, and improve the Hosting Services.

This license ends when no longer reasonably necessary to provide the Hosting Services or satisfy legitimate backup, legal, security, or record-retention obligations.

35. APPALOOSA INTELLECTUAL PROPERTY

Appaloosa retains all rights in Appaloosa-owned:

·scripts;

·software;

·automation;

·configurations;

·infrastructure;

·hosting systems;

·security tools;

·deployment processes;

·monitoring systems;

·internal documentation;

·proprietary methods;

·templates; and

·other technology or intellectual property.

Customer’s ownership of Customer Content or a Website does not transfer ownership of Appaloosa’s underlying systems, tools, methods, or third-party licenses.

PRIVACY AND DATA

36. CUSTOMER PRIVACY OBLIGATIONS

Customer is responsible for determining what information Customer’s Website collects and ensuring that Customer’s collection, use, disclosure, retention, and processing of that information complies with applicable law.

Customer is responsible for its own:

·Website privacy policy;

·cookie disclosures;

·consent mechanisms;

·terms of use;

·ecommerce disclosures; and

·other legally required Customer-facing notices.

Appaloosa’s Privacy Policy does not replace Customer’s own privacy-policy obligations.

37. APPALOOSA PRIVACY PRACTICES

Information Appaloosa collects in its own capacity as a business is governed by Appaloosa’s Privacy Policy.

Where Appaloosa processes personal data on Customer’s behalf and applicable law or the parties’ requirements call for additional processor terms, Appaloosa and Customer may enter into a Data Processing Addendum.

FEES AND BILLING

38. FEES

Customer agrees to pay the fees associated with Customer’s applicable Service Plan and any additional services authorized by Customer.

Fees may include:

·recurring Hosting Service charges;

·domain charges;

·third-party software charges;

·additional development or support;

·migration services;

·excess or upgraded resources;

·taxes; and

·other charges identified before or when incurred.

Except as expressly provided in this Agreement, the applicable Service Plan, or required by law, all fees are nonrefundable once paid. Cancellation does not entitle Customer to a prorated refund or credit for unused time remaining in the current billing period.

If Appaloosa terminates Hosting Services for convenience under Section 44.3, Appaloosa will provide a prorated refund or account credit of prepaid recurring Hosting Service fees attributable to the period after the effective termination date, excluding domain fees, software or licensing charges, third-party charges, taxes, one-time fees, professional-service fees, and other amounts that are nonrefundable or already earned.

39. RECURRING BILLING

Where Hosting Services renew automatically, Customer authorizes Appaloosa or its payment provider to charge the applicable recurring fees using Customer’s payment method on file, subject to applicable law.

Customer is responsible for maintaining current billing information and a valid payment method.

40. PRICE CHANGES

Appaloosa may change recurring Hosting Service pricing upon reasonable notice.

Unless otherwise stated, a pricing change will apply beginning with a future billing or renewal period and will not retroactively change fees already paid for a completed billing period.

Continued use after the effective date of a properly noticed pricing change constitutes acceptance of the new pricing.

41. TAXES

Unless otherwise stated, fees for the Hosting Services and other products or services are exclusive of applicable sales, use, excise, value-added, or similar transaction taxes (“Taxes”).

Where Appaloosa is legally required or authorized to collect applicable Taxes, Appaloosa may calculate and charge those Taxes to Customer in addition to the applicable fees, and Customer agrees to pay them. Appaloosa will remit Taxes collected from Customer to the appropriate taxing authority as required by applicable law.

Customer is responsible for providing accurate information reasonably necessary for Appaloosa to determine applicable Taxes.

If Customer claims an exemption from a Tax that Appaloosa would otherwise be required to collect, Customer must provide a valid and properly completed exemption certificate or other documentation reasonably required by Appaloosa before the exemption may be applied.

Customer is not responsible under this Agreement for taxes imposed solely on Appaloosa’s net income.

SUSPENSION AND TERMINATION

42. SUSPENSION FOR NONPAYMENT

Appaloosa may suspend Hosting Services for overdue amounts after providing reasonable notice where practicable.

Suspension does not eliminate Customer’s obligation to pay amounts properly due.

Appaloosa may restore service after amounts due are paid, provided the Hosting Services have not been terminated or deleted and any other basis for suspension has been cured or otherwise resolved to Appaloosa’s reasonable satisfaction.

43. IMMEDIATE PROTECTIVE SUSPENSION

Appaloosa may immediately suspend, isolate, restrict, or disable some or all Hosting Services where Appaloosa reasonably determines that action is necessary because of:

·malware;

·phishing;

·spam;

·compromised credentials;

·active attacks;

·unlawful activity;

·material Acceptable Use violations;

·abnormal resource consumption;

·security threats;

·risks to other customers;

·risks to Appaloosa infrastructure;

·risks to third-party networks;

·court orders;

·governmental requirements; or

·another condition requiring urgent protective action.

Where reasonably practicable, Appaloosa will notify Customer of the reason for suspension and any corrective action required.

A suspension permitted under this Agreement does not constitute Downtime for purposes of the Service Availability commitment.

44. TERMINATION

44.1 Customer Cancellation

Customer may cancel Hosting Services in accordance with the applicable Service Plan or billing arrangement. Unless otherwise expressly stated, cancellation takes effect at the end of the current paid billing period and prevents the Hosting Services from renewing for a subsequent billing period.

Fees are nonrefundable except as expressly provided in this Agreement, the applicable Service Plan, or required by law.

44.2 Termination for Cause

Appaloosa may terminate Hosting Services for:

·material breach of this Agreement;

·prolonged nonpayment;

·repeated or serious violations of Section 31 (Acceptable Use);

·unlawful use;

·repeated security risks Customer fails to correct;

·circumstances where continued service would create an unreasonable technical, security, or legal risk; or

·other grounds expressly permitted by this Agreement.

Where practicable and appropriate, Appaloosa will provide reasonable notice and an opportunity to cure a remediable breach before termination.

Immediate termination may be appropriate for serious unlawful, fraudulent, malicious, dangerous, or materially abusive activity.

44.3 Termination for Convenience

Appaloosa may terminate Hosting Services for convenience upon thirty (30) days’ written notice to Customer.

If Appaloosa terminates Hosting Services for convenience before the end of a period for which Customer has prepaid recurring Hosting Service fees, and Customer is not then in material breach of this Agreement, Appaloosa will provide the prorated refund or account credit described in Section 38 for the period following the effective termination date.

POST-TERMINATION DATA

45. SEVEN-DAY RECOVERY PERIOD

Following Website deletion, Hosting Service cancellation, or termination, Appaloosa will generally retain the Website in a recoverable state for up to seven (7) days, to the extent technically available.

This recovery period is provided as a convenience and is not guaranteed archival storage.

Customer should obtain all required Website data before cancellation or termination.

After the seven-day period, Appaloosa may permanently delete the Website from active or readily recoverable hosting systems without further obligation to Customer.

Appaloosa may delete or make data inaccessible sooner where reasonably necessary because of:

·law;

·legal process;

·security;

·malware;

·infrastructure protection; or

·another compelling operational requirement.

46. RESIDUAL BACKUP COPIES

Deletion from active or readily recoverable hosting systems does not necessarily cause immediate deletion from every historical backup.

Residual copies may remain in Appaloosa’s ordinary rolling backup systems until the applicable backup expires or is overwritten in the normal course, which may take up to approximately thirty (30) days.

Residual backup copies:

·do not constitute an active hosting account;

·may not be available for Customer-requested restoration;

·are not maintained for Customer archival purposes; and

·will expire or be overwritten according to Appaloosa’s normal backup process.

MIGRATION AND EXIT

47. CUSTOMER DATA EXPORT

Upon reasonable request before data is deleted, Appaloosa will provide, subject to technical availability, reasonably available Website files, database exports, or other Customer-owned materials in Appaloosa’s possession.

Appaloosa is not required to provide:

·Appaloosa-owned tools;

·internal systems;

·master software-license credentials;

·third-party accounts belonging to Appaloosa;

·proprietary configuration information unrelated to operation of Customer’s Website; or

·information Appaloosa is prohibited from disclosing.

48. MIGRATION ASSISTANCE

Routine export of reasonably available Website data  is included in all Service Plans.

Additional work associated with:

·migration to another provider;

·configuration of another provider’s systems;

·troubleshooting third-party hosting;

·DNS migration;

·software replacement;

·complex data conversion;

·development modifications; or

·rebuilding functionality,

may be treated as separately billable professional services or may consume available Website Support Units where appropriate.

Appaloosa does not guarantee that another hosting provider will support or reproduce all functionality of the Website.

WARRANTIES AND DISCLAIMERS

49. LIMITED SERVICE COMMITMENT

Appaloosa will provide the Hosting Services using commercially reasonable efforts and in accordance with the express commitments contained in this Agreement and the applicable Service Plan.

Except for those express commitments, the Hosting Services are provided on an “as available” basis to the fullest extent permitted by law.

50. NO GUARANTEE OF PERFECT OPERATION

TO THE MAXIMUM EXTENT PERMITTED BY LAW, APPALOOSA DOES NOT WARRANT OR GUARANTEE THAT:

·THE HOSTING SERVICES WILL ALWAYS BE UNINTERRUPTED;

·A WEBSITE WILL NEVER EXPERIENCE DOWNTIME;

·A WEBSITE WILL NEVER BE COMPROMISED;

·MALWARE WILL NEVER OCCUR;

·EVERY SECURITY THREAT WILL BE DETECTED;

·EVERY BACKUP WILL SUCCEED;

·EVERY BACKUP WILL BE RESTORABLE;

·CUSTOMER DATA WILL NEVER BE LOST;

·WORDPRESS, THEMES, OR PLUGINS WILL ALWAYS BE CURRENT;

·THIRD-PARTY SOFTWARE WILL BE SECURE OR ERROR-FREE;

·SOFTWARE UPDATES WILL NEVER CREATE COMPATIBILITY ISSUES;

·THIRD-PARTY SERVICES WILL REMAIN AVAILABLE;

·A WEBSITE WILL OPERATE IDENTICALLY AFTER THIRD-PARTY CHANGES; OR

·ALL INTERNET, NETWORK, SOFTWARE, OR SECURITY RISKS CAN BE ELIMINATED.

51. NO BUSINESS-OUTCOME WARRANTY

Appaloosa does not guarantee any particular:

·sales volume;

·revenue;

·profitability;

·conversion rate;

·customer activity;

·search-engine ranking;

·Website traffic;

·market performance;

·transaction volume; or

·other business result.

LIMITATION OF LIABILITY

52. EXCLUSION OF CERTAIN DAMAGES

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, APPALOOSA WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THE HOSTING SERVICES OR THIS AGREEMENT.

THIS EXCLUSION INCLUDES, TO THE MAXIMUM EXTENT PERMITTED BY LAW:

·LOST PROFITS;

·LOST REVENUE;

·LOST SALES;

·LOST TRANSACTIONS;

·LOSS OF BUSINESS OPPORTUNITY;

·LOSS OF GOODWILL;

·BUSINESS INTERRUPTION;

·LOSS OF ANTICIPATED SAVINGS;

·LOSS ARISING FROM WEBSITE UNAVAILABILITY; AND

·LOSS ARISING FROM INACCESSIBLE OR UNAVAILABLE DATA.

This limitation applies regardless of the legal theory asserted, including contract, tort, negligence, strict liability, or otherwise, and even if Appaloosa was advised that such damages were possible.

53. AGGREGATE LIABILITY CAP

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, APPALOOSA’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THE HOSTING SERVICES OR THIS AGREEMENT WILL NOT EXCEED THE HOSTING SERVICE FEES ACTUALLY PAID BY CUSTOMER TO APPALOOSA FOR THE AFFECTED HOSTING SERVICES DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

Where the claim arises less than three months after Hosting Services begin, the cap will be the Hosting Service fees actually paid for the affected Hosting Services before the event giving rise to the claim.

To the fullest extent permitted by law, this limitation applies to claims involving, among other things:

·service outages;

·data loss;

·backup failures;

·restoration failures;

·malware;

·unauthorized access;

·Security Incidents;

·software errors;

·software updates;

·third-party failures;

·domain-management errors;

·security events; and

·other Hosting Service failures.

Nothing in this Agreement limits liability that applicable law does not permit the parties to limit or exclude.

54. AVAILABILITY REMEDIES

The Service Credit provisions of Section 24 control with respect to claims based solely on Appaloosa’s failure to satisfy the Monthly Availability commitment.

The applicable Service Credit is Customer’s sole and exclusive remedy for such an availability failure.

INDEMNIFICATION

55. CUSTOMER INDEMNIFICATION

To the extent permitted by law, Customer will defend, indemnify, and hold harmless Appaloosa and its officers, members, employees, contractors, and agents from third-party claims, liabilities, damages, judgments, costs, and reasonable legal expenses arising from:

1.  Customer Content;

2.  allegations that Customer Content infringes or violates third-party rights;

3.  Customer’s unlawful use of the Hosting Services;

4.  Customer’s material breach of this Agreement;

5.  Customer-controlled users or accounts;

6.  Customer’s violation of privacy, consumer-protection, intellectual-property, or other applicable laws; or

7.  products, services, representations, or transactions offered by Customer through the Website.

Appaloosa will provide reasonable notice of an indemnified claim and reasonable cooperation.

Customer may control the defense of the claim with counsel reasonably acceptable to Appaloosa, provided that Customer may not enter into a settlement that admits wrongdoing by Appaloosa, imposes obligations on Appaloosa, or materially affects Appaloosa’s rights without Appaloosa’s written consent.

CONFIDENTIALITY

56. CONFIDENTIAL INFORMATION

Each party may obtain nonpublic business, technical, security, credential, or other confidential information belonging to the other party.

The receiving party will use reasonable measures to protect such information and will use it only as reasonably necessary in connection with the parties’ relationship.

Confidential Information does not include information that:

·becomes publicly available without breach of this Agreement;

·was lawfully known to the receiving party without confidentiality obligations;

·is lawfully received from a third party without confidentiality restrictions; or

·is independently developed without use of the other party’s Confidential Information.

A party may disclose Confidential Information where required by law, subpoena, or court order, subject to legally permitted notice and protective measures.

A receiving party may disclose Confidential Information to its employees, contractors, service providers, professional advisers, and affiliates who have a reasonable need to know the information for purposes related to the parties’ relationship and who are subject to confidentiality obligations or professional duties reasonably appropriate to protect the information.

FORCE MAJEURE

57. FORCE MAJEURE EVENTS

Neither party will be liable for delay or failure to perform an obligation, other than payment obligations already due, to the extent caused by circumstances beyond that party’s reasonable control and not primarily caused by that party’s material breach of this Agreement.

Force Majeure Events may include:

·natural disasters;

·hurricanes;

·floods;

·fires;

·earthquakes;

·severe weather;

·war;

·terrorism;

·civil unrest;

·government action;

·widespread utility failures;

·telecommunications failures;

·major Internet routing failures;

·widespread infrastructure failures;

·major upstream network failures;

·labor disruptions;

·public emergencies; and

·other comparable events beyond reasonable control.

58. SOPHISTICATED CYBERSECURITY EVENTS

A qualifying Force Majeure Event may include a severe cybersecurity event beyond the affected party’s reasonable control, including:

·unusually large or sophisticated distributed denial-of-service attacks;

·coordinated malicious attacks;

·cyberterrorism;

·sophisticated ransomware attacks;

·exploitation of a previously unknown or zero-day vulnerability;

·widespread attacks on Internet or telecommunications infrastructure; or

·comparable sophisticated malicious activity.

A cybersecurity event will qualify as a Force Majeure Event only to the extent that its effects could not reasonably have been prevented or sufficiently mitigated through commercially reasonable security measures appropriate to the affected party’s responsibilities and the event was not primarily caused by that party’s material breach of this Agreement.

CHANGES TO AGREEMENT AND SERVICES

59. CHANGES TO THIS AGREEMENT

Appaloosa may update this Agreement and incorporated documents from time to time.

Appaloosa will post the updated Agreement with a revised effective or “Last Updated” date.

For material changes affecting existing Customers, Appaloosa will provide reasonable notice using one or more reasonable methods, which may include:

·email;

·account notification;

·invoice or billing notice;

·notice associated with the Hosting Services; or

·another conspicuous method.

Unless a different date is stated, changes become effective on the date identified in the updated Agreement.

Customer’s continued use of the Hosting Services after the effective date of an updated Agreement following applicable notice constitutes acceptance of the updated terms.

If Customer does not agree to a material change, Customer may discontinue the affected Hosting Services before the change becomes effective, subject to Customer’s existing payment obligations.

Changes reasonably required to address:

·security threats;

·abuse;

·legal requirements;

·regulatory requirements; or

·emergency operational conditions

may become effective more quickly where reasonable under the circumstances.

60. CHANGES TO SERVICES

Appaloosa may modify, replace, or discontinue features, technologies, vendors, or operational methods used to provide the Hosting Services.

Where Appaloosa materially discontinues an expressly included plan feature without providing a reasonably comparable replacement, Appaloosa will use reasonable efforts to provide advance notice or another reasonable resolution.

Discontinuation of a discretionary software license under Section 7.4 is governed by that Section.

GENERAL PROVISIONS

61. PRE-SUIT NOTICE AND INFORMAL DISPUTE RESOLUTION

61.1 Pre-Suit Notice

Before either party initiates a lawsuit or other judicial proceeding arising out of or relating to this Agreement or the Hosting Services, that party must provide the other party with written notice of the dispute (a “Notice of Dispute”) and a reasonable opportunity to resolve the matter informally.

The Notice of Dispute must reasonably identify:

·the party providing the notice;

·the Website, account, or Hosting Services involved;

·the nature and factual basis of the dispute;

·the contractual or other obligation alleged to have been violated;

·the approximate date or period during which the events giving rise to the dispute occurred;

·the relief or resolution being requested; and

·contact information for a person authorized to discuss resolution of the dispute.

A Customer Notice of Dispute must be delivered in accordance with the notice provisions of this Agreement to the address or email address designated by Appaloosa for legal or contractual notices.

A Notice of Dispute from Appaloosa may be delivered to the Customer using the contact information maintained for the Customer’s account in accordance with the notice provisions of this Agreement.

The written notice should clearly identify itself as a “Notice of Dispute.”

61.2 Informal Resolution Period

After receipt of a Notice of Dispute, the parties will have thirty (30) days to attempt in good faith to resolve the dispute before either party initiates a lawsuit or other judicial proceeding.

During that period, either party may request a reasonable telephone, video, or other conference between representatives authorized to discuss resolution of the dispute.

Neither party is required to accept a proposed settlement or resolution.

61.3 Condition Precedent to Litigation

Except as provided below, compliance with this Section is a condition precedent to commencing a lawsuit or other judicial proceeding arising out of or relating to this Agreement or the Hosting Services.

Failure to resolve a dispute during the thirty-day informal resolution period does not prevent either party from pursuing any claim or defense otherwise available under this Agreement or applicable law.

61.4 Exceptions

The pre-suit notice and thirty-day informal resolution period do not prevent either party from taking action reasonably necessary to:

·seek temporary, preliminary, or emergency injunctive or equitable relief where delay could result in immediate or irreparable harm;

·preserve a claim that would otherwise become barred by an applicable statute of limitations or other mandatory filing deadline;

·comply with a court order, subpoena, governmental requirement, or other legally required deadline; or

·protect against an immediate security threat, unauthorized access, misuse of intellectual property, or other urgent circumstance for which immediate judicial relief is reasonably necessary.

Where a proceeding is filed solely because an applicable limitations period or other mandatory deadline would otherwise expire, the filing party will, to the extent reasonably practicable and permitted by law, continue to participate in the informal resolution process before seeking substantive judicial relief.

61.5 Service Credit and Other Contractual Claim Procedures

This Section does not replace any specific notice, claim, or cure procedure established elsewhere in this Agreement.

A claim for a Service Credit based on Monthly Availability must first comply with the Service Credit procedures and deadlines contained in the Service Availability provisions of this Agreement.

For a claim involving unpaid fees, a written delinquency, demand, or collection notice that contains substantially the information required by this Section may constitute a Notice of Dispute for purposes of this Section.

62. GOVERNING LAW

This Agreement and any dispute, claim, or controversy arising out of or relating to this Agreement or the Hosting Services will be governed by the laws of the State of Texas, without regard to its conflict-of-laws principles, except to the extent applicable law requires otherwise.

63. FORUM AND JURISDICTION

To the fullest extent permitted by applicable law, any lawsuit or judicial proceeding arising out of or relating to this Agreement or the Hosting Services must be brought in a state or federal court of competent jurisdiction located in the State of Texas.

Each party consents to the personal jurisdiction of such courts and waives objections based solely on an assertion that Texas is an inconvenient forum, except to the extent such waiver is prohibited by applicable law.

64. NOTICES

Appaloosa may send notices to Customer using the email address, billing contact, account contact information, or other contact information associated with Customer’s account.

Customer is responsible for keeping contact information accurate and current.

General notices concerning this Agreement, the Privacy Policy, or service-wide matters may also be posted on Appaloosa’s website or within a Customer-facing service interface where appropriate.

Notices from Customer to Appaloosa that are required under this Agreement, including a Notice of Dispute under Section 61, must be sent to [email protected] unless Appaloosa designates another address or method in writing. Email notice is deemed received when transmitted without a bounceback or other delivery-failure notice, except where applicable law requires another method of delivery.

Notices concerning material contractual changes will be handled in accordance with Section 59.

65. ELECTRONIC COMMUNICATIONS

Customer agrees that agreements, notices, disclosures, invoices, and other communications relating to the Hosting Services may be provided electronically to the extent permitted by applicable law.

Electronic acceptance of this Agreement has the same effect as acceptance in writing.

66. ASSIGNMENT

Customer may not assign or transfer this Agreement or a Hosting Services account in a manner that materially changes the party receiving the Hosting Services without Appaloosa’s consent, which will not be unreasonably withheld where the transfer does not create material legal, security, credit, or operational risk.

Appaloosa may assign this Agreement in connection with:

·a merger;

·reorganization;

·acquisition;

·sale of business;

·sale of substantially all assets associated with the Hosting Services;

·transfer to an affiliate; or

·similar corporate transaction.

67. INDEPENDENT CONTRACTORS

Appaloosa and Customer are independent contracting parties.

Except for limited administrative authority expressly granted to Appaloosa, such as domain-management authority, this Agreement does not create a:

·partnership;

·joint venture;

·employment relationship;

·franchise;

·fiduciary relationship; or

·general agency relationship.

68. NO THIRD-PARTY BENEFICIARIES

Except for persons or entities expressly entitled to protection, indemnification, or another benefit under this Agreement, this Agreement is intended solely for the benefit of Appaloosa and Customer and does not create any right or remedy in any other person or entity.

69. NO WAIVER

A party’s failure or delay in exercising a right under this Agreement does not waive that right.

A waiver of one breach does not constitute a waiver of another or later breach.

70. SEVERABILITY

If a provision of this Agreement is determined to be invalid, illegal, or unenforceable, the remaining provisions will remain in effect to the fullest extent permitted by law.

Where appropriate, the affected provision will be interpreted or modified to the minimum extent necessary to make it enforceable while preserving its intended purpose as closely as legally possible.

71. SURVIVAL

Provisions that by their nature are intended to survive termination will survive termination of this Agreement, including provisions concerning:

·unpaid fees;

·intellectual property;

·confidentiality;

·Customer Content rights;

·disclaimers;

·limitations of liability;

·indemnification;

·post-termination data;

·governing law; and

·dispute provisions.

72. HEADINGS

Section headings are provided for convenience and do not alter the meaning of this Agreement.

73. ENTIRE AGREEMENT

This Agreement together with the documents expressly incorporated by reference constitutes the entire agreement between Appaloosa and Customer concerning the Hosting Services and supersedes prior or contemporaneous discussions, representations, or agreements concerning the same subject matter, except for a separate written agreement that expressly states that it modifies or supersedes this Agreement.

Informal conversations, support communications, estimates, or statements do not amend this Agreement unless the parties clearly agree in writing to the amendment.

74. CONTACT

Questions concerning this Agreement may be sent to Appaloosa at [email protected] or to the Customer’s primary Appaloosa contact. Formal notices and Notices of Dispute must be sent in accordance with Section 64.