Last Modified: May 26th, 2015
Please read this Terms of Service Agreement carefully, as it contains important information regarding your legal rights and remedies.
This Terms of Service Agreement (“Agreement”) is entered into by and between WP Support HQ, LLC, a Colorado Limited Liability Company (“Company”) and you (“Client”). This Agreement is made effective as of the date of your use of this website (“Site”) or the date of electronic acceptance. Company and Client are sometimes referred to herein collectively as the “parties” or individually as a “party.”
1.1 Support Services
Company agrees to provide Client with limited support services for WordPress based websites described in the Client subscription plan, hereto (the “Support Services”). Company, without notice, may make reasonable changes to the Client subscription plan to add new services, further define existing services, or remove services. Company may provide Client with services for website hosting (the “Website”) hereto (the “Hosting Services”). Company shall provide the Hosting Services so that the Website is accessible to third parties. Together, Support Services and Hosting Services, including one or both, are hereto (the “Services”).
Client shall post all materials comprising the Website, including, but not limited to, any images, photographs, illustrations, graphics, audio clips, video clips or text (the “Client Content”), which shall be in a correct format (as specified by Company in consultation with Client). Client acknowledges that Website construction and management is Client’s responsibility. Company shall not be responsible for Website management or files lost or damaged by Client.
1.3 Service Levels
Except as otherwise agreed to by the parties, at all times during the term of this Agreement, Company’s performance of the Services shall meet or exceed the service levels, response times, and other performance criteria set forth on the Client subscription plan (the “Service Levels”). Client acknowledges that the Service Levels do not apply to any loss or interruption of Hosting Services due to causes beyond the control of Company or which are not reasonably foreseeable by Company, including, but not limited to, interruption or failure of telecommunication or digital transmission links and Internet slow-downs or failures. In the event of any loss or interruption of Hosting Services, Client’s sole and exclusive remedy and Company’s sole and exclusive liability for any loss or interruption of Hosting Services shall be receipt of a credit against future Hosting Services as set forth under the Service Level Agreement.
1.4 Additional Storage and Transfer
Client agrees that it will not exceed the bandwidth or storage space limits applicable to the purchased Hosting Services. In the event that the Website exceeds the limits included in the Hosting Services, or should Client request or require increased limits, Company will automatically bill Client for any such upgrade in the level of Hosting Services, or the additional incremental storage required by Client’s use to be included in the Hosting Services, on a time and materials basis and in accordance with the fee schedule set forth in the plan that includes the appropriate storage amounts.
2. License and Proprietary Rights.
2.1 Proprietary Rights of Client
As between Client and Company, Client Content shall remain the sole and exclusive property of Client, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights. Except as provided in this Section 2.1, nothing in this Agreement shall be construed to grant Company any ownership right in, or license to, the Client Content provided by Client to Company.
2.2 Proprietary Rights of Company
All materials, including but not limited to any computer software (in object code and source code form), data or information developed or provided by Company or its suppliers under this Agreement, and any know-how, methodologies, equipment, or processes used by Company to provide the Services to Client, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights inherent therein and appurtenant thereto (collectively “Company Materials”) shall remain the sole and exclusive property of Company or its suppliers. To the extent, if any, that ownership of the Company Materials does not automatically vest in Company by virtue of this Agreement or otherwise, Client hereby transfers and assigns to Company all rights, title and interest which Client may have in and to the Company Materials. Client acknowledges and agrees that Company is in the business of hosting Websites, and that Company shall have the right to provide to third parties services which are the same or similar to the Hosting Services, and to use or otherwise exploit any Company Materials in providing such services.
Each party agrees that during the course of this Agreement, information that is confidential or proprietary may be disclosed to the other party, including, but not limited to, software, technical processes and formulas, source codes, product designs, sales, cost and other unpublished financial information, product and business plans, advertising revenues, usage rates, advertising relationships, projections, and marketing data (“Confidential Information”). Confidential Information shall not include information that the receiving party can demonstrate (i) is, as of the time of its disclosure, or thereafter becomes part of the public domain through a source other than the receiving party; (ii) was known to the receiving party as of the time of its disclosure; (iii) is independently developed by the receiving party; or (iv) is subsequently learned from a third party not under a confidentiality obligation to the providing party. Except as provided for in this Agreement, each party shall not make any disclosure of the Confidential Information to anyone other than its employees who have a need to know in connection with this Agreement. Each party shall notify its employees of their confidentiality obligations with respect to the Confidential Information and shall require its employees to comply with these obligations. The confidentiality obligations of each party and its employees shall survive the expiration or termination of this Agreement.
3. Client Content
3.1 Client Content
Client assumes sole responsibility for (i) acquiring any authorization(s) necessary for hypertext links to third party websites; (ii) the accuracy of materials on the Website, including, without limitation, Client Content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted; and (iii) ensuring that the Client Content does not infringe or violate any right of any third party.
3.2 Acceptable Use Policy
Company does not intend to and shall have no obligation to systematically monitor the content that is submitted, stored, distributed or disseminated by Client via the Website. An Acceptable Use Policy (“AUP”) is in effect for the Hosting Services. Any violation of the AUP may result in the immediate cancellation or suspension of any or all Services without warning.
Company respects the intellectual property of others and requests that Client does too. Company shall respond to notices of alleged copyright infringement if they comply with the law, and such notices should be reported using Company’s DMCA process. We reserve the right to delete or disable content alleged to be infringing and terminate accounts of repeat infringers. Company’s designated agent for notice of alleged copyright infringement on the Services is:
WP Support HQ, LLC, PO Box 2946, Littleton, CO, 80161
4. Fees and Taxes
Services shall be paid by valid payment method (acceptable to Company) at the time of purchase at the fee set forth on the Company’s website. Client’s monthly or annual payments for the Services, depending on the plan selected by Client, shall be automatically charged to the payment method provided by Client at the time of purchase (with such payments being charged in advance on a monthly or annual basis, as applicable) each month or annually, as applicable (“Services Fee”), and you hereby agree that Company is authorized to so charge the payment method on file. Company may, at its sole discretion, suspend or terminate Services without notice if Client fails to provide payment for the new term.
If Client initiates a chargeback with the provider of a credit card or initiates a similar action to a payment provider allowed by Company for charges billed by Company for Services, Services will be immediately suspended without notice. Reestablishment of service following a chargeback or similar action will require sufficient explanation for the action and payment of the disputed charge and/or Company’s bank dispute fee.
4.3 Increase in Fees
Company expressly reserves the right to change the fees charged hereunder for the Services with advanced notice to the Client. If Client does not agree to any such pricing change, it may cancel the Services within thirty (30) days from the date of your notice; otherwise all such changes shall be effective with respect to Client’s account and Client agrees that Company is authorized to charge the payment method provided by Client for any new Services Fee, on the next monthly or annual (as applicable) payment cycle.
4.4 Additional Services Fees
Unless otherwise agreed in writing, Client shall pay to Company all fees for Additional Services on a time and materials basis as invoiced by Company.
4.5 Breach for Failure to Pay
Failure of Client to fully pay any fees within sixty (60) days after the applicable due date shall be deemed a material breach of this Agreement, justifying suspension of the performance of the Services by Company, and will be sufficient cause for immediate termination of this Agreement by Company. Any such suspension does not relieve Client from paying past due fees plus interest and in the event of collection enforcement, Client shall be liable for any costs associated with such collection, including, but not limited to, legal costs, attorneys’ fees, court costs and collection agency fees.
Client shall pay or reimburse Company for all sales, use, transfer, privilege, excise, and all other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed by reason of the performance by Company under this Agreement; excluding, however, income taxes on profits which may be levied against Company.
5.1 Company Warranties
Company represents and warrants that: (i) Company has the power and authority to enter into and perform its obligations under this Agreement; and (ii) Company’s Services under this Agreement shall be performed in a professional, workmanlike manner, consistent with industry standards.
5.2 Client Warranties
Client represents and warrants that: (i) Client has the power and authority to enter into and perform its obligations under this Agreement; (ii) Client shall use commercially reasonable efforts to prevent unauthorized access to any restricted areas of the Website and any databases or other sensitive material generated from or in connection with the Website; and (iii) Client Content does not and shall not contain any content, materials, advertising or services that are inaccurate or that infringe on or violate any applicable law, regulation or right of a third party, including, without limitation, export laws, or any proprietary, contract, moral, or privacy right or any other third party right, and that Client owns the Client Content or otherwise has the right to place the Client Content on the Website. Should Client receive notice of a claim regarding the Website, Client shall promptly provide Company with written notice of such claim.
5.3 Disclaimer of Warranty
EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 5.1, COMPANY MAKES NO WARRANTIES HEREUNDER, AND COMPANY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
6.1 Indemnification by Client
Client agrees to indemnify, defend, and hold harmless Company, its directors, officers, employees and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, to the extent that such action is based upon a claim that: (i) if true, would constitute a breach of any of Client’s representations, warranties, or agreements hereunder; (ii) arises out of the negligence or willful misconduct of Client; or (iii) any of the Client Content to be provided by Client hereunder or other material on the Website infringes or violates any rights of third parties, including without limitation, rights of publicity, rights of privacy, patents, copyrights, trademarks, trade secrets, and/or licenses.
6.2 Indemnification by Company
Company agrees to indemnify, defend, and hold harmless Client, its directors, officers, employees and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, to the extent that such action arises out of the gross negligence or willful misconduct of Company.
6.3 Indemnification Process
In claiming any indemnification hereunder, the indemnified party shall promptly provide the indemnifying party with written notice of any claim which the indemnified party believes falls within the scope of the foregoing paragraphs. The indemnified party may, at its own expense, assist in the defense if it so chooses, provided that the indemnifying party shall control such defense and all negotiations relative to the settlement of any such claim and further provided that any settlement intended to bind the indemnified party shall not be final without the indemnified party’s written consent, which shall not be unreasonably withheld.
7. Limitation of Liability
7.1 Limitation of Liability
COMPANY SHALL HAVE NO LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, THE WEBSITE OR CLIENTS DATA FILES, PROGRAMS OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES. COMPANY SHALL HAVE NO LIABILITY WITH RESPECT TO COMPANY’S OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY OF COMPANY TO CLIENT FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO COMPANY BY CLIENT UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS.
8. Termination and Transition
The term of service shall be determined by either Client’s selection on the order form during the order process or by Client’s request to Company to change to a different term. The term shall begin upon the processing of Client’s order, or upon completion of requested changes by Company. Upon completion of the term, Client acknowledges and agrees that the term will renew automatically for successive terms of length equal to the prior term unless Client notifies Company of its intent to not renew the Services.
Either party may terminate this Agreement if a bankruptcy proceeding is instituted against the other party which is acquiesced in and not dismissed within thirty (30) days, or results in an adjudication of bankruptcy, or the other party materially breaches any of its representations, warranties or obligations under this Agreement, and such breach is not cured within thirty (30) days of receipt of notice specifying the breach, except that the cure period for failures of payment obligations shall be ten (10) days. Company may terminate this Agreement at any time and for any reason by providing written notice of termination to Client and refunding a pro rata portion of fees paid to Client for Services not yet rendered on the date of termination.
8.3 Termination and Payment
Upon any termination or expiration of this Agreement, Client shall pay all unpaid and outstanding fees through the effective date of termination or expiration of this Agreement.
8.4 Site Transition
When providing Hosting Services upon expiration or earlier termination of this Agreement, Company shall keep the Website publicly accessible for a period of thirty (30) days following the date of expiration or earlier termination of this Agreement and if requested by Client, Company may provide Client with transition services, at its then current rates, including Hosting Services and assistance in transitioning the Website to an alternate provider.
9.1 Entire Agreement
This Agreement and attached Schedules constitute the entire agreement between Client and Company with respect to the subject matter hereof and there are no representations, understandings or agreements which are not fully expressed in this Agreement.
The Parties acknowledge and agree that successful completion of the Services shall require the full and mutual good faith cooperation of each of the Parties.
9.3 Independent Contractors
The parties to this Agreement are independent contractors. Neither party is an agent, representative, or partner of the other party and this Agreement shall not be interpreted or construed to create an association, agency, joint venture, partnership, franchise or employee relationship between the Parties.
No amendment, change, waiver, or discharge hereof shall be valid unless in writing and signed by the party against which such amendment, change, waiver, or discharge is sought to be enforced.
9.5 Client Identification
Upon written permission from Client, Company may use the name of and identify Client as a client in advertising, publicity, or similar materials distributed or displayed to prospective clients.
9.6 Force Majeure
Except for the payment of fees by Client, if the performance of any part of this Agreement by either Party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of either party, that party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes.
9.7 Governing Law
This Agreement shall be governed in all respects by the laws of the State of Colorado without regard to its conflict of laws provisions, and Client and Company agree that the sole venue and jurisdiction for disputes arising from this Agreement shall be the appropriate state or federal court located in Arapahoe County, Colorado, and Client and Company hereby submit to the jurisdiction of such courts.
Client shall not assign, without the prior written consent of Company, its rights, duties or obligations under this Agreement to any person or entity, in whole or in part, whether by assignment, merger, transfer of assets, sale of stock, operation of law or otherwise, and any attempt to do so shall be deemed a material breach of this Agreement.
Any notice provided pursuant to this Agreement, if specified to be in writing, shall be in writing and shall be deemed given (i) if by hand delivery, upon receipt thereof; (ii) if by e-mail, upon confirmation thereof; or (iii) if by next day delivery service, upon such delivery. All notices to Company shall be addressed as follows:
WP Support HQ, LLC, PO Box 2946, Littleton, CO 80161
All notices to client shall be addressed to the address on file with Company, which shall be updated, as needed, by Client.
The waiver of failure of either party to exercise any right in any respect provided for herein shall not be deemed a waiver of any further right hereunder.
If any provision of this Agreement is determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable.
This Agreement may be executed in several counterparts, all of which taken together shall constitute the entire agreement between the parties hereto.
The section headings used herein are for reference and convenience only and shall not enter into the interpretation hereof.
9.14 Approvals and Similar Actions
Where agreement, approval, acceptance, consent or similar action by either party hereto is required by any provision of this Agreement, such action shall not be unreasonably delayed or withheld.
All provisions of this Agreement relating to Client warranties, confidentiality, non-disclosure, proprietary rights, limitation of liability, Client indemnification obligations and payment obligations shall survive the termination or expiration of this Agreement.
9.16 Primary Contact
Client shall designate one (1) person who will act as the primary liaison for all communications regarding the Services.
Client is advised to print a copy of this Agreement for its records, as the Agreement may need be referenced from time to time.
9.18 Electronic Contracting
Company and Client desire to facilitate certain transactions pursuant to this Agreement by exchanging documents, records and signatures electronically or by utilizing electronic agents. The use of electronic facilities or agents shall be in accordance with procedures established by Company and governed by the applicable provisions of the Uniform Electronic Transactions Act as adopted in the State of Colorado.