Summary of the Fine Print Below
WPAuth LLC is pleased to facilitate debugging services for our products via WPEngine, ensuring your site stays live while we work out the kinks. Rest assured that any data or other information we request from you will only be used for support and debugging. As soon as we solve the problem, all of the website data and information you sent us will be deleted forever. None of the data or information you share with us will go public, ever. Please note – this summary is not a part of the Contract, and therefore is not legally binding in any way. We provide it to you simply for ease of reference.
Contract
These Terms of Service set forth the terms and conditions pursuant to which WPAuth LLC (“we”, “us”, or “our”) will facilitate staging services via WPEngine (“Staging Services”) for you (“Agreement”). We may update this Agreement from time-to-time. In the event of a material change to this Agreement, we will provide you with written notice. Your continued use of the Staging Services following such updates constitutes your acceptance of the same. If you do not agree to the terms of any modification, you may terminate this Agreement in accordance with the Termination section below.
Provision and Use of the Staging Services
• Subject to the terms and conditions of the Agreement, we will facilitate Staging Services to Customer. The Staging Services may only be used for their intended purposes and in accordance with this Agreement. You shall provide us with all assistance as reasonably required for us to activate and operate the Staging Services.
• You acknowledge that we may engage third parties to provide or enable elements of the Staging Services.
• From time-to-time we may cease facilitating aspects of the Staging Services. Should components of the Staging Services come to an end, we will attempt to replace them with comparable components, but may not be able to do so. Our decision to cease facilitating aspects of the Staging Services is not a breach of this Agreement.
• We do not provide backup. While WPEngine does provide backup, there is no guarantee that the backup will work properly and that the content will be completely recovered or formatted properly. You are solely responsible for keeping a separate backup of any data that you do not want to lose.
Proprietary Rights
• We do not claim any ownership rights in your content that you provide to us in connection with the Staging Services (“Customer Content“). However, to facilitate the Staging Services, we need you to grant us a right to use the Customer Content. As such, you hereby grant to us, our affiliates, providers of Third Party Services, and subcontractors a non-exclusive, fully-paid, perpetual, royalty-free, transferable, revocable, worldwide license to use and modify the Customer Content (in whole or in part) but only to the extent necessary to facilitate the Staging Services.
Warranties
• Each party represents and warrants that it has the power, authority and legal right to enter into this Agreement and to perform the obligations set out in it, and those set out in contracts incorporated by reference.
• Customer represents and warrants that it owns or has a license for all intellectual property and other proprietary rights . At our request, Customer will provide us evidence of this ownership or license. Customer represents and warrants that our use of the Customer Content in accordance with such license will not infringe the intellectual property or other proprietary rights of any individual or entity. Customer also represents and warrants that all information it provides to us is complete, accurate and up-to-date. Finally, Customer represents and warrants that if it is a natural person, that it is over eighteen years of age.
Disclaimer
• THE STAGING SERVICES ARE PROVIDED AS-IS, AS AVAILABLE, AND WITH ALL FAULTS. EXCEPT AS EXPRESSLY PROVIDED IN THE WARRANTIES SECTION, ABOVE, (i) WE MAKE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND (ii) WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO: ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, UNINTERRUPTED OR ERROR FREE SERVICE, ERROR CORRECTION, AVAILABILITY, ACCURACY AND ANY AND ALL IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
Limitation of Liability and Remedies
• IN NO EVENT SHALL OUR LIABILITY ARISING OUT OF, OR RELATED TO, THIS AGREEMENT, FOR ANY REASON, INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE AMOUNT OF FEES PAID OR OWED BY CUSTOMER TO US IN THE THREE MONTHS PRECEDING THE CLAIM. * IN NO EVENT SHALL WE OR OUR LICENSORS HAVE ANY LIABILITY TO CUSTOMER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, THE STAGING SERVICES, INCLUDING, BUT NOT LIMITED TO, THE USE, OR INABILITY TO USE, THE STAGING SERVICES OR FOR ANY CONTENT, OR ANY INTERRUPTION IN THE STAGING SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Indemnification
• You agree to defend us against any claim, demand, suit or proceeding made or brought against us by a third party arising out of your conduct that constitutes or is allegedly a violation of law. Customer will indemnify us for damages finally awarded against us in connection with any such claim (or for a settlement amount Customer consents to).
Security; Safe Harbor
• We will maintain commercially reasonable administrative, physical and technical safeguards designed to help ensure the security of our internal networks from malicious activity and to provide for the privacy, confidentiality and integrity thereof. However, security is a shared responsibility.
• Should we determine that there has been a security breach that has compromised your account we agree to notify you as soon as reasonably possible but only after we have investigated the breach and fulfilled our legal obligations under applicable law. You agree to the same notification obligations should you determine that there has been a breach.
General Provisions
• ARBITRATION AND CLASS ACTION WAIVER. Both parties agree that all disputes (including any dispute involving interpretation, applicability, enforceability, or formation of the Agreement, including any claim that the Agreement or any part of it is void or voidable) will be resolved by binding, individual arbitration under the American Arbitration Association’s rules. Both parties waive trial by jury. Customer may bring claims only on its own behalf. Neither party may participate in a class action or classwide arbitration for any claims covered by this Agreement. Customer also agrees not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if we are a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act. In the event the American Arbitration Association is unwilling or unable to set a hearing date within one hundred and sixty (160) days of filing the case, then either party may elect to have the arbitration administered instead by the Judicial Arbitration and Mediation Services. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with this Agreement. This arbitration agreement will survive the termination of Customer’s relationship with us. The parties further agree that the pricing and terms of this Agreement were made in reliance upon agreement to this paragraph.
• Amendment and Waiver. Except as expressly provided herein, this Agreement, including any other contracts incorporated by reference, may only be amended as agreed by the parties in a written amendment (including by a click-to-accept that is accepted by you or Authorized User). The parties further agree that upgrades (e.g. moving up a service plan level), downgrades (e.g. moving down a service plan level), and additional services (e.g. adding account management services) may be agreed via electronic communication (e.g. ticket or email) that is acknowledged by authorized representatives for both parties. If one party fails to exercise, or delays exercising, any right, remedy or power set out in this Agreement, this will not operate as a waiver of that right, remedy or power, whether under this Agreement or at law or equity.
• Assignment. Neither party may assign this Agreement, in whole or in part, without the other party’s prior written consent, provided that no consent is required in connection with a merger, reorganization, sale of assets or similar transaction. Any purported assignment in violation of this section shall be null and void. The Agreement will be binding on all permitted successors and assigns.
• Severability. Any provision in this Agreement that is held to be illegal or unenforceable in any jurisdiction will be effective only up to the extent of such illegality or unenforceability, if possible, and will not invalidate the remaining provisions of the paragraph or this Agreement. To the largest extent possible, the illegal or unenforceable provision will be restated to reflect the parties’ intent.
• Entire Agreement. This Agreement, and any document incorporated by reference, states the entire agreement between the parties with respect to the subject matter and supersedes all previous proposals, negotiations and other written or oral communications between the parties. Customer’s pre-printed purchase orders will have no force or effect.
• Force Majeure. We shall not be deemed to be in default of this Agreement, or to have breached any of its provisions, as a result of a delay, failure in performance, or interruption in the Staging Services which result, either directly or indirectly, from any circumstances beyond our reasonable control including acts of god, acts of civil or military authority, civil disturbance, war, strikes, fire, laws, regulations, governmental acts, third party network unavailability, and/or failure of telecommunication facilities.
• Third Party Beneficiaries; Relationship. There are no third party beneficiaries to this Agreement. Nothing contained in this Agreement will be deemed or construed as creating a joint venture or partnership. No party is by virtue of this Agreement authorized as an agent, employee or legal representative of any other party. Neither party has the authority to make any representations, claims or warranties of any kind on behalf of the other party, nor on behalf of that party’s affiliates, agents, subcontractors, licensors or third-party suppliers.
• Survival. Any provision of this Agreement that contemplates performance or observance subsequent to termination or expiration of this Agreement (including, without limitation, confidentiality, limitation of liability and indemnification) will survive termination or expiration and continue in full force and effect.