Contracting Party and Authorized Users
- On the Order, Customer designated a “Customer.” This person or entity is the person (or entity) with whom (or which) we are entering this Agreement. The individual clicking-through terms must have the authority to bind Customer to this Agreement, and by doing so, represents and warrants that he or she has such authority. The Customer is the sole owner of the account.
- The Customer may designate at registration (or subsequently through the customer portal) up to four users that have authority to make changes to Customer’s account (“Authorized User(s)”). In addition, any other individual who is able to provide us with evidence satisfactory to us that such individual has the authority to act on behalf of Customer (e.g. the last four digits of the credit card used for the Fees) will also be able to access Customer’s account and the Services.
- Authorized Users are required to abide by the terms of this Agreement. Customer acknowledges that it is fully responsible for all liabilities incurred through use of any account (whether lawful or unlawful) and use of the Services, including, but not limited to, all damages, losses and liabilities caused by each Authorized User. Any breach by an Authorized User will be deemed to be a breach by Customer. Customer and Authorized Users shall promptly notify WP Engine in the event that Customer or an Authorized User becomes aware of any violation of the terms of this Agreement. Customer will be solely responsible for the security and confidentiality of the account information, including user names and passwords, and will ensure that no third party uses the account. In the event that Customer or an Authorized User becomes aware that the security of such party’s login information has been breached, Customer will immediately change the login information.
Provision and Use of the Services
- Subject to the terms and conditions of the Agreement, we will use commercially reasonable efforts to provide Customer with the Service in accordance with the SLA during the Term specified in the Order. Our SLA sets out our obligations in the event the Services are unavailable. The SLA specifies Customer’s sole remedies for downtime, unavailability, or other SLA failures.
- Customer shall use the Services solely for its intended purpose in accordance with this Agreement. Customer shall provide us with all information, assistance and materials as reasonably required for us to activate and operate the Services.
- Customer acknowledges that we may provide the Services using our own infrastructure or we may engage third parties to provide or enable elements thereof. We will not arbitrarily make changes to the Services. However, from time-to-time, we may make changes to address technical issues and/or ensure the stability of our network and during this time the Services may be unavailable. We will use commercially reasonable efforts to provide Customer with notice of anticipated unavailability. However, we may need to make emergency changes without notice.
- From time-to-time either we, or the providers of the Third Party Services, may cease supporting aspects of the Services, or provide replacement components (any such event, an “End of Life”). Should components of the Services come to an End of Life, we will use commercially reasonable efforts to replace them with comparable components, but may not be able to do so. No End of Life shall constitute a breach of this Agreement.
- Certain aspects of the Services may be in beta form as designated by us (“Beta Services”). In addition to the disclaimers of warranty set out in this Agreement, the Beta Services are provided on an as-is basis with the express understanding that they may not have been tested, have faults, and may not be as secure as other elements of the Services. Any SLA, indemnity, representation or warranty that we provide herein does not apply to the Beta Services. We reserve the right to terminate the Beta Services at any time, even if Customer has relied on them as a material inducement to enter into this Agreement. We make no guarantee that Beta Services will be put into production.
- If Customer orders a dedicated IP address from us, the Customer has the right to use this IP address only during the Term and subject to this Agreement. Upon termination or expiration of this Agreement for any reason Customer will have no further right to use this IP address.
- Elements of our Services are duplicated for disaster recovery purposes (“Disaster Backup”). Disaster Backup is designed to restore the Services in an emergency. Data restored from a Disaster Backup may not be formatted in the original manner, and may not capture all data. We have no obligation to Customer, or any third party, to restore all of Customer Content, or liability for failure to do so.
- We provide support through a variety of methods (e.g. knowledgebase, forums, chat) (“Support”). Please refer to https://my.wpengine.com/ for the most current support information.
- It is our expectation that the Customer representative seeking support has a basic understanding of the systems and technology related to the Services, and we reserve the right to limit the level of support provided absent a separate written support agreement.
- We may solicit or Customer may provide feedback about the Services. We are free to use and disclose this feedback for any purpose without an accounting to Customer or any other person. Further, we own all right, title, and interest in and to any changes, modifications or upgrades we make to our current products or services and any new products or services that we develop using such feedback.
- Our charges to provide the Services to Customer are set out on the Order (“Fees”). Fees applicable to any renewal Term will be at our then-current rates, provided that we have notified Customer that an adjustment will take effect at the time of renewal prior to the date by which Customer may opt out of the applicable renewal. If the Order sets a cap on Customer’s use of Services (e.g. number of visitors) and the applicable cap is exceeded, overages may apply. Additionally, we reserve the right to adjust the Fees in the event that there is a material change to the configuration of the supported sites and/or Customer use of the Services including changes to CPU or RAM consumption, cacheability, bandwidth, visitors and/or transfer.
- Unless otherwise stated on the Order or herein, Customer will be charged the Fees beginning on the Effective Date. Our schedule of payments is set out on the Order; if no schedule is stated, Fees are due in full in advance, except that Fees for applicable overages shall be invoiced and charged (as the case may be) in arrears. All Fees are payable in U.S. dollars and are not refundable except as expressly stated herein. Unless otherwise specified on an Order, we will collect the Fees by debiting the electronic payment method that Customer has provided to us. Credit, debit, or other similar sources of payment may be debited up to one week prior to the due date. Customer must keep the method of payment current, and able to be debited. It is Customer’s responsibility to ensure that the Fees are paid. If payment is not made by or on the due date, we may charge Customer a late fee on the unpaid balance at the lesser of one and one-half percent (1.5%) per month or the maximum lawful rate permitted by applicable law, rounded to the next highest whole month and compounded monthly.
- We may be required to collect taxes on the Services. Taxes (excluding taxes on our income) will be added to the Fees and Customer agrees to pay them, unless Customer provides us with a valid tax exemption certificate. Further, if Customer elects to pay via a wire transfer or credit transfer, then Customer is responsible for any applicable transfer fees. Such amounts will be automatically added to the Fees.
- If Customer does not pay the Fees by the applicable due date, we may suspend or terminate provision of the Services and terminate this Agreement. In addition, Third Party Services, such as domain names, may be forfeited. We may also send Customer to collections, and add to the Fees any charges associated with collecting unpaid Fees. If the Services are suspended because we do not receive payment in accordance with this Agreement, we will preserve Customer Content (defined below) in accordance with our normal backup processes and procedures. After that time the Agreement will be terminated and Customer Content will be deleted.
- If the Order references any money-back guarantee, this guarantee applies only to our standard Services and not to Third Party Services (e.g. domain names), set up or migration Services or other Services that are custom or non-standard.
- We do not claim any ownership rights in the text, files, images, photos, video, sounds, links, works of authorship, or any other materials that Customer provides to us in connection with the Services (collectively, “Customer Content”). However, in order to enable us to provide the Services, we need Customer to grant us certain limited rights therein. As such, Customer hereby grants to us, our affiliates, providers of Third Party Services, and subcontractors a non-exclusive, fully-paid, perpetual, royalty-free, fully sublicensable, transferable, irrevocable, worldwide license to use, modify, publicly perform, publicly display, reproduce, prepare derivative works of and distribute the Customer Content (in whole or in part).
- WP Engine and its licensors own all right, title, and interest in and to Services and the systems and networks used to provide such Services (including all system generated data (e.g. performance data)), including all modifications, improvements, upgrades, derivative works, and feedback provided by Customer or any Authorized User related thereto and all intellectual property rights in and to any of the foregoing. Customer agrees to assign all right, title, and interest it may have in the foregoing to us. Except for the express rights granted herein, we do not grant any other licenses, whether express or implied, to any of WP Engine’s intellectual property including software, services and products.
Term and Termination
- This Agreement has the term specified on the Order (“Term”). Upon expiration of any Term, this Agreement will renew for successive periods equal to the same amount of time as the initial Term unless one party notifies the other in writing of its intent not to renew no later than thirty days prior to the expiration of the then-current Term.
- Customer may terminate this Agreement prior to the end of a Term if we materially breach this Agreement, Customer has provided us with written notice of the breach, and we have failed to cure such breach within thirty days from receipt of notice.
- We may terminate this Agreement prior to the end of a Term if: (i) Customer materially breaches this Agreement, we have provided Customer with written notice of this breach, and Customer has failed to cure the breach within ten days from the date of our notice; (ii) Customer fails to pay any Fees by the applicable due date; (iii) Customer’s use of the Services endangers or negatively affects our network or systems, violates the law, or inhibits our ability to provide the Services to our other customers; or (iv) we elect to do so and provide Customer with not less than fifteen days’ notice of termination.
- Upon any termination or expiration of this Agreement we will stop providing the Services. This means that Customer’s Content may not be available. It is Customer’s sole obligation to keep separate backups and to download the Customer Content prior to termination or the expiration this Agreement.
- “Confidential Information” means any information disclosed by us to Customer, either directly or indirectly, in writing, orally, or by inspection of tangible objects (i) that the disclosing party identifies as confidential or proprietary; or (ii) that reasonably appears to be confidential or proprietary because of legends or other markings, the circumstances of disclosure, or the nature of the information itself. Customer agrees to preserve the confidential nature of the our Confidential Information by retaining and using the Confidential Information in trust and confidence, solely for its use as permitted and in connection with this Agreement, and by using the same degree of protection that Customer uses to protect similar proprietary and confidential information, but in no event less than reasonable care. We will have the right to seek an injunction (without having to post a bond) to prevent any breach or continued breach of this section. Customer agrees to promptly report any breaches of this section to us. Confidential Information does not include any information which (i) is now, or becomes, through no act or failure to act on the part of Customer, generally known or available to the public without breach of this Agreement by Customer; (ii) was acquired by Customer without restriction as to use or disclosure before receiving such information from the us, as shown by Customer’s files and records immediately prior to the time of disclosure; (iii) is obtained by Customer without restriction as to use or disclosure by a third party authorized to make such disclosure; or (iv) is independently developed by Customer without use of or reference to our Confidential Information, as shown by documents and other competent evidence in Customer’s possession.
- 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 necessary to make the license grants to us contained herein. 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.
- OTHER THAN AS IS EXPRESSLY SET OUT IN THE SLA, THE SERVICES ARE PROVIDED AS-IS, AS AVAILABLE, AND WITH ALL FAULTS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT (i) WP ENGINE MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND (ii) WP ENGINE AND ITS LICENSORS 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 PEFORMANCE 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 ONE MONTHPRECEDING 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 SERVICES, INCLUDING, BUT NOT LIMITED TO, THE USE, OR INABILITY TO USE, THE SERVICES OR FOR ANY CONTENT, OR ANY INTERRUPTION IN THE 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.
- CUSTOMER AGREES THAT OUR SLA CONTAINS CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR INTERRUPTION, PARTIAL UNAVAILABILITY, AND COMPLETE UNAVAILABILITY OF THE SERVICES, AND ANY OTHER ITEM SET OUT IN THE SLA.
- THE DISCLAIMERS AND LIMITATIONS PROVIDED HEREIN DO NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
- Customer agrees to defend us against any claim, demand, suit or proceeding made or brought against us by a third party (i) alleging that Customer Content infringes or misappropriates the intellectual property rights of a third party or violates applicable law, or (ii) is based on Customer’s violation of our Authorized Use Policy. Customer will indemnify us for damages finally awarded against us in connection with any such claim (or for a settlement amount Customer consents to).
- 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. Customer agrees to configure its use of the Services in such a way as to maintain the security of our Services and network (e.g. by only uploading software that has been demonstrated to be secure, installing patches, and not sharing passwords).
- Should we determine that our network has been accessed in an unauthorized manner, and that unauthorized access impacts Customer’s Services, we agree to notify Customer as soon as reasonably possible but only after we have investigated the unauthorized access and fulfilled our legal obligations under applicable law. Customer agrees to the same notification provisions should Customer determine that there has been unauthorized access.
- We may rely on authentication credentials provided to us to access the Services. This means that we may rely on the integrity of passwords and other methods of authentication such as credit card numbers.
- Publicity. Upon our written request, the parties will cooperate on and issue a press release relating to the relationship envisioned by this Agreement, provided that neither party may issue such press releases relating to this Agreement without providing the other party a reasonable opportunity for input. During the term, either party may include the name and logo of the other party in lists of customers or vendors, in accordance with the other party’s standard trademark usage guidelines, and Customer will allow our public relations agencies or in-house staff to interview, write, and place case studies and written endorsements in initial news, reviews, and editorial calendar opportunities. Customer also agrees to participate in phone interviews with prospective customers, prospective investors, industry analysts, and review and news editors as requested by us from time to time.
- ARBITRATION AND CLASS ACTION WAIVER. Customer agrees that, except as otherwise provided herein, all disputes between Customer and us (whether or not such dispute involves a third party) will be resolved by binding, individual arbitration under the American Arbitration Association’s rules for arbitration of consumer-related disputes and the parties hereby expressly waive trial by jury. As an alternative, Customer may bring a claim in Customer’s local “small claims” court if permitted by that court’s rules. Notwithstanding the foregoing, either party may seek emergency injunctive relief by filing for such in accordance with the Governing Law and Venue section, below. Further, Customer may bring claims only on its own behalf. Neither party may participate in a class action or class-wide 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. Customer may opt out of this agreement to arbitrate. If Customer does opt out, neither party can require the other to participate in an arbitration proceeding. To opt out, Customer must notify us in writing within thirty (30) days of the date that Customer first became subject to this arbitration provision. Customer must use this address to opt out: WP Engine, Inc. ATTN: LEGAL – Arbitration Opt-Out, 504 Lavaca, Suite 1000, Austin, TX 78701. Customer must include their name, residence address, and a clear statement that Customer wants to opt out of this arbitration agreement. If the prohibition against class actions and other claims brought on behalf of third parties or arbitration clause contained above is found to be unenforceable or if Customer opts-out of arbitration then all of the preceding language in this section will be null and void and the Governing Law and Venue section, below, shall control. 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.
- Governing Law and Venue. This Agreement is governed by the laws of the State of Texas, without regard to its choice of law statutes. Any disputes must be brought in the U.S. District Court for the Western District of Texas, located in Austin, Texas. If that U.S. District Court cannot hear the dispute, the dispute shall be brought before the State District Courts of Travis County located in Austin, Texas. The parties agree that venue and jurisdiction is proper in this court and agree not to contest notice from this court. The United Nations Convention on the International Sale of Goods is disclaimed. EACH PARTY WAIVES ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WAY RISING OUT OF, OR RELATED TO, THIS AGREEMENT. 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 Customer 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 shall 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 shall 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 shall be effective only up to the extent of such illegality or unenforceability, if possible, and shall not invalidate the remaining provisions of the paragraph or this Agreement. To the largest extent possible, the illegal or unenforceable provision shall 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 hereof and supersedes all previous proposals, negotiations and other written or oral communications between the parties with respect thereto. Customer’s pre-printed purchase orders shall have no force or effect.
- Order of Precedence. If there is a conflict between the terms and conditions of this Agreement and any contracts incorporated by reference, they shall have the following precedence: Order, Agreement, then the applicable Exhibit or other referenced document.
- 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 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; Relationships. There are no third party beneficiaries to this Agreement. Nothing contained in this Agreement shall be deemed or construed as creating a joint venture or partnership between the parties hereto. 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.
- Notices. Except as otherwise required herein, notices shall be effective when delivered, as indicated by a delivery receipt, or, in the case of notices delivered by post, five business days after being mailed to the designated address by first class mail. Notices to Customer shall be made to the address set out in our customer record or electronically, through the Customer’s portal or via email to an Authorized User. All notices to us shall be delivered to: WP Engine Legal Department, 504 Lavaca Street, Suite 1000, Austin, TX 78701.
- 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) survive termination or expiration and continue in full force and effect.