WordPress VIP Hosting/Support Services Terms & Conditions
CAPITALIZED TERMS USED HEREIN BUT NOT DEFINED SHALL HAVE THE MEANING ASCRIBED TO THEM IN THE ORDER FORM.
- Services; Order Forms. Subject to the terms and conditions herein, including Customer’s payment of all applicable fees, Automattic will perform the services (“Services”) that you elect on your Order Form. In the event of any conflict between the terms herein and any Order Form, the terms in the Order Form shall control.
- Hosting. If Customer selects “VIP Hosting Services” on the Order Form, Automattic will provide Customer with VIP Hosting Services in accordance with Automattic’s VIP Hosting Service Level Agreement (“SLA”), the current version of which is located at https://wpvip.com/our-services/cloud-hosting-sla/.
- VIP Support. So long as the support period for the selected hosted product or service remains in effect, Automattic will provide support services for that product or service. Customer will only submit support requests via a designated contact, which Customer will designate to your account representative.
- Add-on Services. If Customer has selected other Automattic products or services on an Order Form, then Automattic shall provide such products or services, in accordance with the terms described on the Order Form.
- VIP Hosting Service Terms.
- Security. Customer is solely responsible for maintaining the security of its VIP Hosting Service account. Customer must immediately notify Automattic of any unauthorized uses of its site, its account or any other breaches of security Customer is responsible for taking precautions as necessary to protect its environment and systems from viruses, worms, Trojan horses, and other harmful or destructive content.
- Content. As between Customer and Automattic, Customer owns all Content that it submits to the VIP Hosting Service. Customer is fully responsible for all activities that occur under the account and any other actions taken in connection with its site, including any materials it or other third parties publish to a site hosted with our VIP Hosting Service (any such material, whether text, graphics, audio files, computer software or otherwise, “Content”). Customer is entirely responsible for the content of, and any harm resulting from, the Content. If Customer elects the Enhanced Distribution setting of the VIP Hosting Service, Customer grants Automattic a revocable, non-exclusive, transferable, sublicensable, world-wide, royalty-free license to use, reproduce, modify display, distribute, adapt and publish the Content in the WordPress.com Reader.
- Overburdening Resources. Customer may not interfere with Automattic’s business or ability to provide services to its other customers, nor take any action or make any use of the Services that places excessive burdens on the network or systems used to provide such Services. Specifically, Customer may not use or provide open proxies or internet relay chat or use the Services for video streaming. If Customer’s use of the Services materially exceeds the use by similarly situated customers, Automattic may offer to move Customer to a different plan or charge for the additional use. If Customer refuses, Automattic may place restrictions on Customer’s use of the Services. Customer may not perform any vulnerability or penetration testing of Automattic’s network or systems, including Customer’s own hosted environment, without Automattic’s prior written approval.Each client’s engagement with WordPress VIP is based on an expectation of platform usage. Over the course of each contract the WordPress VIP team will work with you to understand your usage of our platform, and agree any adjustments required at renewal. If a Customer’s overages are egregious and sustained, WordPress VIP reserves the right to invoke the Resources clause in the WordPress VIP Terms of Service and Master Services Agreement (section 2c).
- Customer Warranties.
Customer represents, warrants and covenants that:
- its use of the Services will be in accordance with this Agreement and with all applicable laws and regulations.
- neither its use of the Services nor the Content will infringe or misappropriate the rights (including intellectual property rights) of any third party;
- Customer has fully complied with any third-party licenses relating to the Content, and has done all things necessary to successfully pass through to end users any required terms;
- the Content does not contain or install any viruses, worms, malware, Trojan horses or other harmful or destructive content;
- the Content is not spam, is not machine- or randomly-generated, and does not contain unethical or unwanted commercial content designed to drive traffic to third party sites or boost the search engine rankings of third party sites, or to further unlawful acts (such as phishing) or mislead recipients as to the source of the material (such as spoofing);
- the Content is not pornographic, does not contain threats or incite violence towards individuals or entities, and does not violate the privacy or publicity rights of any third party;
- Customer has not assigned keywords to its site in a misleading or unlawful manner, including in a manner intended to trade on the name or reputation of others, and Automattic may change or remove any description or keyword that it considers inappropriate or unlawful, or otherwise likely to cause Automattic liability.
- None of Customer’s sites hosted on the VIP Hosting Service are directed to children under the age of 13 (as defined by COPPA).
Without limiting any of the foregoing representations or warranties, Automattic has the right (though not the obligation) to remove any Content or disable, terminate or deny access to and use of the VIP Hosting Service to any individual or entity to prevent harm to Automattic’s systems.
- Customer Privacy Requirements. Customer will be solely responsible for complying with all applicable laws in connection with its collection, use and sharing of personal information via its website by or on behalf of Customer. Without limiting the foregoing, Customer will provide all notices, and obtain all consents, as required under applicable law in connection with the collection, use and disclosure of personal information via its website.
- Copyright and DMCA Policy. If Automattic receives a notification of copyright infringement from a user under Automattic’s Digital Millennium Copyright Act (“DMCA”) Policy (located at http://automattic.com/dmca) or otherwise, Automattic will send such notification to Customer (“DMCA Notification”). Customer will be responsible for taking action with respect to each DMCA Notification within 48 hours, by either (a) removing the allegedly infringing content or (b) determining that the Content at issue is not infringing, notifying Automattic of the same, and taking sole responsibility for the continued publication of such Content (including all legal damages, expenses, and related legal fees accruing to Customer, a third party, and/or Automattic).
- Fees and Payment. Fees for Services are as set forth on the applicable Order Form. All payments shall be made in US Dollars. Any payments more than thirty (30) days overdue will bear a late payment fee of 1.5% per month, or, if lower, the maximum rate allowed by law. In addition, Customer will pay all taxes, shipping, duties, withholdings, backup withholding and the like; when Automattic has the legal obligation to pay or collect such taxes, the appropriate amount shall paid by Customer directly to Automattic. Automattic will issue service credits in the event we fail to meet the Performance Requirement set out in our SLA, located at https://wpvip.com/our-services/cloud-hosting-sla/. These service credits are Customer’s sole and exclusive remedy for failure to meet the Performance Requirement.
- Term and Termination.This Agreement begins on the Effective Date and shall continue for so long as Automattic is providing Customer with products or services under one or more Order Forms. Either party may terminate this Agreement or an Order Form by written notice to the other party in the event that such other party materially breaches this Agreement or a particular Order Form, as applicable, and does not cure such breach within thirty (30) days of written notice of such breach.
- Warranty Disclaimer. All Services are provided “as is” and without warranty of any kind from anyone, including, without limitation, any warranty of merchantability or fitness for a particular purpose or non-infringement, all of which are hereby expressly disclaimed. Further, Automattic does not warrant results or freedom from bugs or uninterrupted use.
- Indemnification. Customer agrees to indemnify, defend and hold harmless Automattic, its contractors, and its licensors, and their respective directors, officers, employees and agents from and against any and all claims and expenses, including attorneys’ fees, arising out of or related to (a) its use of the services provided under this Agreement, including but not limited to Customer’s violation of this Agreement, and (b) its Content, including for any actions it takes or fails to take with respect to a DMCA Notification.
- Limitation of Liability. Notwithstanding anything else herein or otherwise, and except for bodily injury, neither Automattic nor any of its suppliers or licensors shall be liable or obligated with respect to the subject matter hereof or under any contract, negligence, strict liability or other legal or equitable theory (i) for any amounts in excess of the aggregate of the fees paid to it hereunder with respect to the applicable product or service during the six month period prior to the cause of action; (ii) for any cost of procurement or substitute goods, technology, services or rights; (iii) for interruption of use or loss of data; or (iv) for any matter beyond its reasonable control. Neither party shall be liable for any incidental, consequential or punitive damages. The Services are not designed, manufactured or intended for use in hazardous environments requiring fail-safe performance where the failure of product could lead directly to death, personal injury or significant physical or environmental damage. The parties agree that this section represents a reasonable allocation of risk and that Automattic would not proceed in the absence of such allocation.
- Publicity. Customer agrees that Automattic may use Customer’s name and logo in client listings. Further, Customer’s site(s) hosted as part of the VIP Hosting Services will contain a “Powered by WordPress.com VIP” logo (or similar attribution).
- Confidentiality. Automattic and Customer each acknowledge that they may be furnished with, receive or otherwise have access to information of or concerning the other party that such party considers to be confidential, a trade secret or otherwise restricted. “Confidential Information” means all information, in any form, furnished or made available directly or indirectly by one party to the other that is marked confidential, restricted, or with a similar designation, or information which, under the circumstances of its disclosure, a reasonable party would deem to be confidential information. Each Party shall maintain as confidential and shall use at least the same degree of care as it employs to avoid unauthorized disclosure of its own Confidential Information, but in any event no less than commercially reasonable efforts.
- The parties shall be independent contractors under this Agreement, and nothing herein shall constitute either party as the employer, employee, agent, or representative of the other party, or both parties as joint venturers or partners for any purpose.
- Neither this Agreement nor any Services are assignable or transferable by Customer (and any attempt to do so shall be void); Automattic may assign and transfer any rights and/or obligations hereunder.
- Any notice, report, approval, authorization, agreement or consent required or permitted hereunder shall be in writing or by email; notices shall be sent to the address (physical or email) the applicable party has or may provide by notice or, if there is no such address, the most recent address (physical or email) the party giving notice can locate using reasonable efforts.
- The provisions hereof are for the benefit of the parties only and not for any other person or entity. No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any partial exercise of any right or power hereunder preclude further exercise.
- Automattic may amend this Agreement (including pricing terms) at any time by giving no less than thirty (30) days’ prior notice to Customer at the address (email or physical) set forth on the Order Form; provided that any such amendment shall not be effective until the commencement of the first Renewal Term to follow such notice.
- The Services provided under this Agreement may allow Customer to download, access or use third-party software or services (“Third-Party Services”), including WordPress plugins, themes, or other software applications. The Third-Party Services are provided by third parties independent of the Services provided by Automattic under this Agreement, and Automattic is not responsible for the Third-Party Services. Customer will comply with the terms applicable to the Third-Party Services.
- If any provision shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this arrangement shall otherwise remain in full force and effect and enforceable.
- This Agreement shall be deemed to have been made in, and shall be construed pursuant to the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act.
- This Agreement and any other terms and conditions referenced herein are the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter hereof. Any pre-printed or standard terms of any purchase order, confirmation, or similar form, even if signed by the parties after the effectiveness hereof, shall have no force or effect.
- The substantially prevailing party in any action to enforce this agreement will be entitled to recover its attorney’s fees and costs in connection with such action.
- Any provisions which by their nature should survive termination or expiration of this Agreement will survive.
We have updated our Hosting/Support Terms & Conditions as of October 1, 2020. If you are a new Customer, then these Terms & Conditions will be effective as of the date you sign an Order Form. If you are an existing Customer, then, prior to the beginning of your next Renewal Term, we will notify you of the effective date of these changes on your Order Form.