TERMS AND CONDITIONS
These Terms and Conditions, together with any applicable Orders and other terms and attachments referencing these Terms and Conditions (collectively, the “Agreement”) form a binding agreement between you (“you” or “your”) and Liquid Web, LLC, through iThemes (“we” or “us”). The purpose of this Agreement is to provide a framework governing your use of our products and services, including our software, plugins and add-ons (collectively, the “Services”).
YOU SHOULD CAREFULLY READ THIS AGREEMENT. YOUR ACCESS TO AND USE OF OUR SERVICES ARE GOVERNED BY THIS AGREEMENT. BY USING OUR SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS AND ALL OTHER APPLICABLE TERMS. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, THEN YOU ARE EXPRESSLY PROHIBITED FROM USING OUR SERVICES.
- SERVICES – LICENSE AND SUPPORT
We grant you a limited, nonexclusive, nontransferable right to access and use the Services you order from us pursuant to one or more orders (each, an “Order”), and the related documentation in accordance with this Agreement. Additional terms and conditions that apply to each type of Service may be set forth in the Order as well as in the description of our Services, which will be published on our website or otherwise made available to you. In the event of any conflict between this Agreement and the terms of any Order, the terms of the Order will control. We reserve the right to refuse to provide you with our Services in our sole discretion and without notice.
During the term of your Order, we will provide you with updates and support as further detailed in your account or as described on our website (“Support”). Support is only available to the customer named in the Order; we have no obligation to provide Support to any other party. Unless otherwise provided, Support does not include assistance with Third Party Products (as defined in Section 4).
We and our licensors are the owner of the Services and related documentation and retain all title and proprietary rights thereto. You neither own nor will you acquire any claim or right of ownership to any Services or associated documentation.
All plug-ins and add-ons provided as part of the Services, unless otherwise stated, are licensed under the GNU General Public License (http://www.gnu.org/licenses/gpl.html) version 2.0 or later.
- AMENDMENT TO TERMS
We may from time to time make changes to the terms of this Agreement, including our Service descriptions and Support details, and will notify you of such changes by posting them on our website or otherwise communicating them to you. You shall periodically check our website for such changes. Your continued use of our Services or Support after such changes have been communicated constitutes your agreement to the updated terms.
- FEES, PAYMENT TERMS AND REFUNDS
You are responsible for all fees for the Services in the amounts set forth on the applicable Order/invoice, which may be posted to your account (“Fees”). Except as otherwise agreed between the parties, the Fees are not subject to change during your current term; however, we may increase Fees for the Services upon renewal.
Unless we approve of another payment method or schedule in writing, we will charge your credit card annually in advance of our provision of the Services, in most cases without invoice. If another method of payment has been approved, we will provide you an invoice via electronic mail no later than two (2) days after the invoice date to the email address(es) designated in your Order. You must keep your billing email address(es) current. Billing commences on the first day the Services are made available to you. Unless otherwise agreed by us in writing, recurring Fees will be charged/invoiced annually. Non-recurring Fees will be included on the invoice for the applicable installation or Service changes. You waive the right to dispute any charges not disputed within thirty (30) days’ of a charge or invoice date.
You are responsible for the payment of all governmental assessments, surcharges, and fees pertaining to its use of the Services (other than taxes on our net income). We will not charge you for any taxes if you provide us with valid certificate(s) of exemption. If you fail to provide or maintain the required tax exemption certificate(s), you shall indemnify, defend and hold us harmless from any damages or liability we incur, and we may back-bill you for all applicable taxes.
We offer a limited money-back guarantee if you are not satisfied with our Services, as further described on our website. Please contact us prior to the expiration of the guarantee if you would like to request a refund. Except as otherwise provided herein, all Services are non-cancellable and all Fees are non-refundable, and you are not entitled to any refund for any Services purchased hereunder.
- YOUR RESPONSIBILITIES AND USE RESTRICTIONS
You assume total responsibility for your and your user’s use of the Services, and you are responsible for all acts and omissions of your users in connection with receipt or use of the Services. You shall use our Services only for legitimate business and commercial purposes, and you shall not use the Services for activities which, in our sole discretion, may be illegal, offensive, abusive, or in a manner that interferes with or adversely affects the Services or use of the Service, including using in the Services in a way that promotes hate, violence, discrimination, or intolerance. You agree to compensate, hold harmless, and defend us from any claims, damages, losses, liabilities, costs, and expenses, including attorneys’ fees, resulting from your use or misuse of the Services.
You and your users must use the Services in compliance with all applicable laws, rules and regulations, including but not limited to all data protection and privacy laws, as well as laws relating to unsolicited commercial electronic messages. You must obtain and maintain all applicable licenses, permits and approvals for the use of the Services required by any governmental agency, foreign or domestic, having jurisdiction over the transaction. Except as otherwise agreed to by us in writing, you shall not remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any materials made available by us. If you are under 18, you may use the Services only with the involvement of a parent or guardian.
Except to the extent included with the Services as described below, you are responsible for the installation, operation, and maintenance of all hardware, software, equipment and services, including internet access, necessary to access and use the Services (“Third Party Products”), and for ensuring the same is up to date. We may make available to you certain Third Party Products and, if purchased by you, such Third Party Products are non-refundable upon termination of the Agreement. You acknowledges and agrees that when we are reselling any Third Party Products, we neither provide any warranty related to nor assume any liability for such Third Party Products, but will pass through to you the manufacturer’s warranties, as applicable, related to each Third Party Product we resell and will use commercially reasonable efforts to facilitate your utilization of such warranties.
The Services are not intended to be used for or in connection with life support, life sustaining, nuclear or other applications in which failure of such Services could reasonably be expected to result in personal injury, loss of life or catastrophic property damage. You represent and warrant that you will not use the Services in such applications, and you agree that we are not liable, in whole or in part, for any claim or damage arising from your use of Services in such applications.
- EXPORT COMPLIANCE
The Services are provided from the United States, and we make no representation that the Services are appropriate or available for use in all locations outside the United States. If you use the Services outside of the United States, you do so according to your own initiative and are responsible for compliance with local laws, including laws regarding the transmission of technical data exported from the U.S. or the territory in which you reside. Accessing or otherwise using the Services from territories where the Services are illegal is prohibited, and you may not use or otherwise export or re-export the Services except as authorized by United States law and the laws of the jurisdiction in which the Services were obtained. In particular, the Services may not be used, exported or re-exported (a) in or into any U.S. embargoed countries or (b) by or to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List or any other restricted party lists. By using the Services, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the Services for any purposes prohibited by United States law.
- WARRANTIES AND DISCLAIMERS
Each party represents, warrants and covenants that: (a) if it is an organization, it is duly formed, validly existing and in good standing under the laws of the state in which it is formed, and in any jurisdiction where the failure to perform in good standing would have a material adverse effect on its business or its ability to perform its obligations hereunder; (b) it has all necessary power and authority to enter into this Agreement and each Order and to perform its obligations hereunder, and the execution of this Agreement and each Order and consummation of the transactions contemplated thereby have been duly authorized by all necessary actions on its part; (c) this Agreement constitutes a legal, valid and binding obligation of such party, enforceable against it in accordance with its terms; and (d) it shall comply with all laws in connection with this Agreement. We have no responsibility for the security, loss, intrusion or unauthorized access of stored data or any loss or damage caused by your acts, omissions or failure to comply with the terms of this Agreement. ALL PRODUCTS AND SERVICES PROVIDED OR OTHERWISE MADE AVAILABLE BY US ARE PROVIDED ON AN “AS-IS” BASIS, AND WE MAKE NO WARRANTY, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AS TO ANY SERVICE PROVIDED HEREUNDER OR DESCRIBED HEREIN, OR AS TO ANY OTHER MATTER, ALL OF WHICH WARRANTIES ARE HEREBY EXCLUDED AND DISCLAIMED. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES, SO THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU; IN SUCH CASE, THE FOREGOING SHALL BE READ TO PROVIDE THE MOST LIMITED WARRANTY PERMITTED BY APPLICABLE LAW.
We shall indemnify, defend, and hold you harmless from and against any and all demands, causes of action, losses, damages, fines, penalties, and claims, and all related costs and expenses (including reasonable attorneys’ fees) (collectively referred to as “Losses”) arising any third party claim that your use of the Services not in violation of this Agreement infringes or misappropriates any valid U.S. patent, copyright, or trade secret of such third party. In addition to our indemnification obligations herein, in the event of a claim or threatened claim under this Section by a third party, we may, at our sole option, (a) revise the Services so that they are no longer infringing, (b) obtain the right for you to continue using the Services, or (c), in the event neither of the foregoing are reasonable, terminate this Agreement and refund to you a pro-rata amount of any pre-paid Services not yet received as of the date of such termination. THIS SECTION REPRESENTS OUR SOLE AND EXCLUSIVE LIABILITY AND YOUR EXCLUSIVE REMEDY RELATED TO ANY INFRINGEMENT OR MISAPPROPRIATION CLAIMS OF A THIRD PARTY. You shall indemnify, defend and hold us and our officers, directors, agents and employees harmless from and against any and all Losses arising out of or in any manner relating to: (a) your violation of this Agreement or any law; (b) any claim for withholding or other taxes that might arise or be imposed due to this Agreement or the performance hereof; (c) your negligence or willful acts or omissions; (d) claims by a third party arising out of or related to your use or misuse of any Service; or (e) claims relating to any information or materials you provide or otherwise make available to us.
- LIMITATIONS OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY NOR ANY OF ITS AFFILIATES, EMPLOYEES, CONTRACTORS, OR SUPPLIERS, SHALL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, OR PUNITIVE DAMAGES, LOST PROFITS, LOST REVENUES, AND LOSS OF BUSINESS OPPORTUNITY THAT THE OTHER PARTY MAY INCUR OR EXPERIENCE IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, HOWEVER CAUSED AND UNDER WHATEVER THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, STRICT LIABILITY AND NEGLIGENCE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL WE BE LIABLE FOR ANY DAMAGES RELATED TO ANY THIRD PARTY PRODUCT OR SERVICE. WE SHALL NOT BE LIABLE TO YOU FOR ANY CLAIMS OR DAMAGES RESULTING FROM OR CAUSED BY (A) YOUR FAULT, NEGLIGENCE OR BREACH OF THIS AGREEMENT; (B) CLAIMS AGAINST YOU BY ANY OTHER PARTY; (C) ANY ACT OR OMISSION OF ANY OTHER PARTY; (D) EQUIPMENT OR SERVICES FURNISHED BY A THIRD PARTY; OR (E) INFORMATION OR MATERIALS YOU PROVIDE TO US. THE SERVICES ARE PROVIDED OVER VARIOUS FACILITIES AND COMMUNICATIONS LINES, AND INFORMATION SHALL BE SENT OVER LOCAL EXCHANGE CARRIER AND INTERNET BACKBONE CARRIER LINES AND THROUGH ROUTERS, SWITCHES, AND OTHER DEVICES (COLLECTIVELY, “CARRIER LINES”) OWNED, MAINTAINED, AND SERVICED BY THIRD PARTIES BEYOND OUR CONTROL. WE ASSUME NO LIABILITY AND DO NOT MAKE ANY WARRANTIES RELATING TO THE INTEGRITY, PRIVACY, SECURITY, CONFIDENTIALITY, OR USE OF ANY INFORMATION WHILE IT IS SENT OVER THOSE CARRIER LINES. USE OF THE CARRIER LINES IS SOLELY AT YOUR RISK AND IS SUBJECT TO ALL APPLICABLE LAWS. WE ARE NOT RESPONSIBLE FOR ANY INFORMATION TRANSMITTED OR RECEIVED THROUGH THE SERVICES. YOU ARE SOLELY RESPONSIBLE FOR YOUR ACTIONS WHEN USING THE SERVICES, INCLUDING, BUT NOT LIMITED TO, COSTS INCURRED FOR INTERNET ACCESS. IN ANY EVENT, OUR LIABILITY TO YOU AND YOUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS, SUCCESSOR AND ASSIGNS ARISING UNDER OR RELATED TO THIS AGREEMENT AND THE SERVICES PROVIDED HEREUNDER SHALL BE LIMITED IN ALL CASES TO DIRECT DAMAGES THAT SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY YOU UNDER THE APPLICABLE ORDER FOR THE SERVICES DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR DAMAGES. NEITHER PARTY MAY BRING ANY ACTION, REGARDLESS OF FORM, ARISING OUT OF OR RELATING TO AN ORDER OR THIS AGREEMENT MORE THAN THREE (3) MONTHS FROM THE DATE ON WHICH THE CAUSE OF ACTION AROSE. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN LIABILITIES, SO THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU; IN SUCH CASE, THE FOREGOING SHALL BE READ TO PROVIDE THE MOST LIMITED LIABILITY PERMITTED BY APPLICABLE LAW.
- TERM AND TERMINATION; AUTOMATIC CHARGES
Each Service term commences upon the date of the Order and shall continue for a period of one year, unless otherwise agreed to in the Order (the “Initial Term”), unless sooner terminated as set forth below. Thereafter, the Order will automatically renew, and your credit card or other selected payment method will be automatically charged, for the period specified in the Order, or, if no such term is specified, on an annual basis at the then-current monthly rates (the “Renewal Term” and together with the Initial Term, the “Service Term”) unless either party provides the other party with written notice of its intention not to renew prior to the commencement of the next Renewal Term.
Either party may terminate an Order upon written notice to the other party if the other party defaults in the performance of any of its material obligations under this Agreement and such default continues for a period of thirty (30) days after receipt of written notice specifying the nature of the breach. We may also terminate this Agreement or any Order at any time and for any reason effective upon notice to you.
You may not use any Services or materials after the expiration or termination of your Order for the Services. Upon termination of this Agreement for any reason, you will be deemed to have forfeited any unused Service credits or referral credits.
We may suspend some or all of the Services without liability to you if: (i) you fail to cure any default within the cure period specified above; (ii) we determine that the Services are being used, have been used, or will, with commercially reasonable certainty, be used in breach of this Agreement; (iii) we reasonably believe that the Services have been accessed or utilized in any way by a third party without your consent; or (iv) suspension of Services is reasonably necessary to protect us or our products and services. We will use commercially reasonable efforts to provide you advance notice of a suspension and a chance to cure the violation on which the suspension is based, unless we determine, in our reasonable judgment, that an immediate suspension is necessary to protect our network and our customers from an imminent, significant operational, network integrity or security risk. Suspensions based on your breach of this Agreement will not relieve your obligation to pay for the suspended Services during the period of suspension. Any suspension imposed under this Section will be lifted upon your cure of the breach causing the suspension. In the event you are unable to cure the breach within fifteen (15) days of our notice, the suspension may be treated as a termination for cause. During the suspension period, we shall have the right to deny access to, and/or, destroy data stored on the compromised server or account. We may, in our sole discretion, allow access to a suspended account.
- PRIVACY AND SECURITY
You are solely responsible for the security of online access to Services, including your account, and you must take precautions to protect the confidentiality of your password and other login information. You shall not share your password or login information with any other person or entity. You shall contact us immediately if you suspect unauthorized use of your password or login information or any other unauthorized activity on your account. You are and will be responsible for all activities conducted on and with the Services that make use of your account information, and for any charges or fees incurred by the use of that account information, including any use you may subsequently contend you did not authorize. We may justifiably assume that any communication or instructions received through any electronic systems and placed under your account or password were placed or authorized by you.
- DISPUTE RESOLUTION – ARBITRATION; CLASS-ACTION WAIVER, AND JURY WAIVER
The exclusive means of resolving any dispute or claim arising out of or relating to this Agreement (including the interpretation, enforcement and any alleged breach thereof) or the Services shall be BINDING ARBITRATION administered by JAMS under the JAMS Streamlined Arbitration Rules & Procedures. The one exception to the exclusivity of arbitration is that either party has the right to bring an individual claim against the other in a small-claims court of competent jurisdiction, or, if filed in arbitration, the responding party may request that the dispute proceed in small claims court if the party’s claim is within the jurisdiction of a small claims court. If the responding party requests to proceed in small claims court before the appointment of the arbitrator, the arbitration shall be administratively closed, and if requested after the appointment of the arbitrator, the arbitrator shall determine if the dispute should be decided in arbitration or if the arbitration should be administratively closed and decided in small claims court. Whether you choose arbitration or small-claims court, you may not under any circumstances commence or maintain against us any class action, class arbitration, or other representative action or proceeding.
By using the Services, you agree to the above arbitration terms. In doing so, YOU GIVE UP THE RIGHT TO GO TO COURT (except for matters that may be taken to small-claims court). YOU ALSO GIVE UP THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING. You understand your rights will be determined by a NEUTRAL ARBITRATOR, NOT A JUDGE OR JURY, and the arbitrator shall determine all issues regarding the arbitrability of the dispute. The arbitrator can grant any relief that a court can, and decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Any proceeding to enforce arbitration, including any proceeding to confirm, modify, or vacate an arbitration award, may be commenced in any court of competent jurisdiction. In the event that this arbitration provision is for any reason held to be unenforceable, any litigation against us may be commenced only in the federal or state courts located in Ingham County, Michigan. You hereby irrevocably consent to the jurisdiction of those courts for such purposes. If any action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged or actual dispute, breach, default or misrepresentation in connection with any provision of this Agreement, the successful or prevailing party shall be entitled to recover reasonable attorney fees and other costs incurred in that action or proceeding, in addition to any other relief to which it may be entitled.
- GENERAL TERMS
You represent and warrant that you are not on the United States Department of Treasury, Office of Foreign Asset Controls list of Specially Designated National and Blocked Persons to whom we are legally prohibited to provide the Services. You may not use any Service for the development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles, in a country listed in Country Groups D: 4 and D: 3, as set forth in Supplement No. 1 to the Part 740 of the United States Export Administration Regulations, nor may you provide administrative access to any Service to any person (including any natural person or government or private entity) that is located in or is a national of any country that is embargoed or highly restricted under United States export regulations. Neither party will use the other party’s name, logo or service marks, for any commercial purpose without the other party’s prior written consent. Notwithstanding the foregoing, you may use our name and logo to positively publicize that you use the Services, and we may include your name on our customer list, website, partner portal, and publications. You shall not assign, voluntarily or by operation of law, any of your rights or obligations under this Agreement without our prior written consent. This Agreement shall be binding on the parties and respective successors and assigns. Nothing in this Agreement creates, or will be deemed to create, third-party beneficiaries of or under this Agreement. Nothing contained in this Agreement shall be construed to create a partnership, agency, joint venture, or employer/employee relationship between the parties. Each party is responsible for the actions of, and its obligations to, its own personnel, contractors, and subcontractors. Neither party shall be liable, nor shall any credit allowance or other remedy be extended, for any failure of performance or equipment due to causes beyond such party’s reasonable control, and if we are unable to deliver any Service as a result of such event, you shall not be obligated to pay us for the affected Service for so long as we are unable to deliver that Service. The failure by any party to this Agreement to insist upon strict performance of any provision of this Agreement will not constitute a waiver of that provision. All waivers must be in writing to be enforceable hereunder. Except as otherwise provided herein, any notice or other communication regarding this Agreement may be sent by U.S. mail (first-class, airmail or express mail), commercial courier, or electronic mail. Notices to us shall be sent to: Liquid Web, LLC, 2703 Ena Drive, Lansing MI 48917, Attn: General Counsel, and notices to you will be sent to the contact information set forth in your Order, or at such other addresses as either party may designate in writing. If any provision of this Agreement is declared invalid, illegal or unenforceable under applicable law, that provision shall be ineffective only to the extent of such declaration and such declaration shall not affect the remaining provisions of this Agreement. The parties consent and agree that this Agreement and any Order may be entered into electronically by way of electronic signatures (for example, by electronically clicking a box confirming agreement or utilizing third party software such as DocuSign), and any such electronic signatures shall be binding. This Agreement, together with all Orders, embodies the entire agreement and understanding us and you with respect to the subject matter of this Agreement and supersedes all prior oral or written agreements and understandings relating to the subject matter of this Agreement. No statement, representation, warranty, covenant or agreement of any kind not expressly set forth in this Agreement will affect, or be used to interpret, change or restrict, the express terms and provisions of this Agreement. Each party’s obligations under Section 5 (Representations, Warranties and Covenants), Section 6 (Indemnification), Section 7 (Limitation of Liability) and this Section 12 and shall survive the expiration or termination of this Agreement. This Agreement shall be governed by and interpreted according to the laws of the State of Michigan (without regard to its conflict of law principles).