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WHMCS END USER LICENSE AGREEMENT
IMPORTANT: THIS SOFTWARE END-USER
LICENSE AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU (EITHER INDIVIDUALLY OR
COLLECTIVELY ON BEHALF OF YOUR BUSINESS ENTITY) AND WHMCS LIMITED. READ IT
CAREFULLY BEFORE COMPLETING THE INSTALLATION PROCESS AND USING THE
SOFTWARE. AMONG OTHER PROVISIONS, IT PROVIDES A LICENSE TO USE THE
SOFTWARE AND CONTAINS TERMINATION AND WARRANTY INFORMATION AND LIABILITY
DISCLAIMERS. BY INSTALLING AND USING THE SOFTWARE, YOU CONFIRM YOUR
ACCEPTANCE OF THE SOFTWARE AND YOU AGREE TO BE BOUND BY THE TERMS OF THIS
EULA. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, THEN DO NOT INSTALL
THE SOFTWARE AND RETURN THE SOFTWARE TO YOUR WEBSITE OR PLACE OF PURCHASE
FOR A FULL REFUND. CONTINUED USE OF THIS SOFTWARE SIGNIFIES YOUR CONTINUED
ACCEPTANCE OF THESE TERMS AND ANY FUTURE CHANGES TO THEM.
1.
Definitions.
1.1 “Activated” has the meaning given in Section
2.4.2.
1.2 “Agreement” means both the EULA and the Pricing and Term
Agreement.
1.3 “Applicable Law” means applicable international,
federal, state or local laws, statutes, ordinances, regulations or court
orders.
1.4 “Beta Version” means any version of the Software released
by WHMCS for testing as determined by WHMCS in its sole
discretion.
1.5 “Effective Date” has the meaning given in the Pricing
and Term Agreement.
1.6 “EULA” means this End-User License
Agreement.
1.7 “Intellectual Property Rights” means trade secret
rights, rights in know-how, moral rights, copyrights, patents, trademarks
(and the goodwill represented thereby), and similar rights of any type
under the laws of any governmental authority, domestic or foreign,
including all applications for and registrations of any of the foregoing.
1.8 “Pricing and Term Agreement” means, as applicable, (a) the Pricing
and Term Agreement entered into between You and WHMCS in connection with
the license of the Software which sets forth (among other things) pricing,
term and payment provisions of this Agreement; (b) the pricing and payment
provisions located at www.whmcs.com (or such other URL as WHMCS may
designate from time to time); and/or (c) the pricing and payment provisions
of any agreement between You and a WHMCS reseller (or other third party
authorized to grant You the license) pursuant to which You obtained a
license to use the Software. The Pricing and Term Agreement is hereby
incorporated by reference and made a part of this Agreement as though fully
set forth herein.
1.9 “Software” means the WHMCS software program(s)
supplied by WHMCS together with this Agreement, and corresponding
documentation, source code, object code, Updates, user interfaces
(including without limitation any web-based interfaces), printed materials
and online or electronic documentation, excluding any third party
components.
1.10 “Term” means the term of this Agreement as set forth
by the term of the license obtained by You (a) in connection with the
Pricing and Term Agreement; or (b) from a WHMCS reseller or other third
party authorized to grant You the license.
1.11 “Territory” means the
world, except to the extent that use or distribution of the Software in
certain countries or regions would cause either party to violate Section
9.13 (Export Controls).
1.12 “Trademarks” means all domestic and
international trademarks, service marks, logos, trade names, trade dress,
including all goodwill represented by each of the foregoing, whether
registered or unregistered, of WHMCS including without limitation, WHMCS
and the WHMCS logo. WHMCS may add to the foregoing nonexclusive list of
Trademarks in its sole discretion from time to time.
1.13 “Third Party
Users” and “Licensee” both mean, as applicable, (i) an authorized
third-party end user of the Software who obtained a Software License from
You, or (ii) You.
1.14 “Updates” means any bug fixes, patches and
other modifications of the Software provided to You by
WHMCS.
1.15 “Virtual Private Server” means a virtual server operating
on a single physical server upon which multiple virtual servers may
operate.
1.16 “You” or “Your” means or refers to the individual
or entity entering into this Agreement with WHMCS, whether or not such
terms are capitalized in this Agreement.
1.17 “WHMCS” means WHMCS
Limited.
1.18 “WHMCS Anonymous Usage Data” means all data collected
by WHMCS in connection with the use of the Software by You or any Third
Party Users, including (a) the licensed or unlicensed status of the
Software; (b) the source from which the license for the Software was
obtained; and (c) information about the hardware upon which the Software is
installed including (i) the public IP address, (ii) the operating system,
(iii) web server version, (iv) the use of any virtualization technologies
on such server, and (v) data utilized to prevent and combat various server
attacks by hackers or their hardware, including but not limited to assaults
such as spam attacks, brute force attacks, dictionary attacks, phishing,
pharming, and the like. Additionally, “WHMCS Anonymous Usage Data” may
also include information collected by WHMCS from time to time concerning
which features of the Software are most often used in order to improve and
make adjustments to the Software, including, but not limited to the number
of active modules, PHP version, mySQL version, installed PHP extensions,
installed add-on modules, template utilization, and the number of active
administrators, domains, servers, and active clients.
1.19 “WHMCS Client
Area” means WHMCS’s customer service, license management and Incident
tracking system or such successor system as WHMCS may designate from time
to time which. Only WHMCS Licensees may access and use the WHMCS Client
Area.
2. License.
2.1 License Grant. During the Term, solely within the
Territory and subject to the terms and conditions of this Agreement, WHMCS
grants You a limited, non-exclusive, license to (a) install and use the
Software and (b) make a single back-up copy of the registered Software for
archival purposes. The foregoing license is revocable, non-transferable,
non-assignable and non-sub-licensable.
2.2 License Transfers. The Software
is licensed only to You. You may not rent, lease, sub-license, sell,
assign, pledge, transfer or otherwise dispose of the Software, on a
temporary or permanent basis, without the prior written consent of WHMCS
Limited. (For the avoidance of doubt, this license is only granted to one
person or company and if more than one person or company wishes to use the
Software, each user must purchase a separate license).
2.3 Restrictions
of Use.
2.3.1 Installation of Software Package. The Software is
licensed as a single product and none of the components in the Software may
be separated for installation or use.
2.3.2 Single Domain. This
Software is licensed to operate on only one domain.
2.3.3 Back-Up Copy.
All backup copies must be an exact copy of the original Software. If You
make a back-up copy of the Software, such copy must be in machine-readable
form and You must reproduce on such copy all Intellectual Property Right
notices and any other proprietary legends on the original copy of the
Software.
2.3.4 No Derivative Works; Reverse Engineering. You may not
alter, merge, modify, prepare derivative works based upon, adapt or
translate the Software in any manner whatsoever. Additionally, You may not
decompile, reverse engineer, disassemble, or otherwise reduce the Software
to any human-readable form, or use the Software to develop any application
having the same primary functions as the Software.
2.4 Monitoring of
Software.
2.4.1 Audit by WHMCS. You agree that WHMCS may audit Your use
of the Software for compliance with this Agreement at any time, upon
reasonable notice. You agree to cooperate with WHMCS and any auditors
selected by WHMCS to complete the audit including by providing access to
any facilities in which the Software is used or stored, including without
limitation the facilities which house the hardware upon which the Software
is installed. In the event that such audit reveals any use of the Software
by You other than in compliance with the terms of this Agreement, You shall
reimburse WHMCS for all reasonable expenses related to such audit in
addition to any other liabilities You may incur as a result of such
noncompliance.
2.4.2 Authentication System. The Software contains
technological measures that, working in conjunction with WHMCS computer
servers, are designed to prevent unlicensed or illegal use of the Software
(collectively, the “Authentication System”). You acknowledge and agree
that such Authentication System allows WHMCS to (among other things) (a)
monitor use of the Software by You as set forth in Section 2.4.3 (WHMCS
Anonymous Usage Data); (b) suspend or disable access to the Software in
whole or in part in the event of a breach of this Agreement; and (c)
terminate use of the Software upon the expiration or termination of this
Agreement. You agree not to thwart, interfere with, circumvent or block
the operation of any aspect of the Authentication System, including any
communications between the Software and WHMCS’s computer servers. For
the avoidance of doubt, the Software will not operate unless WHMCS from
time to time verifies the Software using the Authentication System which
requires the exchange of information between You and WHMCS over the
Internet.
2.4.3 WHMCS Anonymous Usage Data. You agree that, without
further notice to You, WHMCS may use technological means to (a) monitor use
of the Software as may be necessary to monitor for compliance with the
terms of this Agreement; and (b) collect WHMCS Anonymous Usage Data. WHMCS
reserves the right to copy, access, store, disclose and use WHMCS Usage
Data indefinitely in its sole discretion; provided, however, that in the
event that WHMCS collects information concerning which features of the
Software are most often used by You, WHMCS will remove personally
identifiable information (if any) from such data and copy, access, store,
disclose and use such data solely for the purpose of improving the
Software.
2.5 Data Protection Act 1998. WHMCS Limited undertakes to
comply with the provisions of the Data Protection Act 1998 and any related
legislation in so far as the same relates to the provision of the Software
and related support services by WHMCS Limited to You. Your name, address
and other personal information as well as any personal data You supply to
WHMCS Limited in order for WHMCS to provide the Software and related
services related to You will be stored by WHMCS Limited on its computer
system and may be made available to WHMCS staff and related third parties
as required to allow the provision of support and any related services to
be completed. Any third party that receives personal data from WHMCS
Limited is under an obligation to process such personal data in line with
the Data Protection Act 1998.
2.6 Updates. The Software may automatically
download and install updates from time to time from WHMCS. These updates
are designed to improve, enhance and further develop the Software and may
take the form of bug fixes, enhanced functions, new software modules,
completely new versions and additional products and services offered
through or from the Software. You agree to receive such updates (and
permit WHMCS to deliver these to You) as a condition to Your use of the
Software.
2.7 License Exchange. You agree that this Agreement shall
supersede any prior End-User License Agreement and between You and WHMCS
applicable to the Software and that such prior End-User License Agreement
is hereby terminated if (a) You previously purchased a license for the
Software and are now purchasing a new license for the Software so that You
may obtain additional technical support or updates during the Term of this
Agreement; or (b) the copy of the Software You licensed with this Agreement
is an upgrade to an earlier version of the Software. You may not continue
to use the earlier version of the Software or transfer it to another person
or entity.
3. Intellectual Property Rights.
3.1 Ownership. WHMCS owns
all right, title and interest, including all Intellectual Property Rights,
in and to, (a) the Software; (b) the Trademarks; (c) WHMCS Anonymous Usage
Data; and (d) any and all Submissions (collectively, “WHMCS IP
Rights”).
3.2 Trademarks; Domain Names. This Agreement does not
authorize You to use the Trademarks. If You wish to use the Trademarks,
You must obtain a written license to use the Trademarks from WHMCS.
Additionally, You will not (a) assert any Intellectual Property Right in
the Trademarks or in any element, derivation, adaptation, variation or name
thereof; (b) contest the validity of any of the Trademarks; (c) contest
WHMCS’s ownership of any of the Trademarks; or (d) in any jurisdiction,
adopt, use, register, or apply for registration of, whether as a corporate
name, trademark, service mark or other indication of origin, or as a domain
name or sub-domain name, any trademarks, or any word, symbol or device, or
any combination confusingly similar to, or which incorporates in whole or
in part, any of the Trademarks.
3.3 No Implied License or Ownership.
Nothing in this Agreement or the performance thereof, or that might
otherwise be implied by law, will operate to grant You any right, title or
interest, implied or otherwise, in or to the WHMCS IP Rights.
3.4 No
Contest. You acknowledge and agree that the WHMCS IP Rights are and shall
remain the sole and exclusive property of WHMCS. You agree that You shall
never oppose, seek to cancel, or otherwise contest WHMCS’s ownership of
the WHMCS IP Rights or act in any manner that would or might conflict with
or compromise WHMCS’s ownership of the WHMCS IP Rights, or similarly
affect the value of the WHMCS IP Rights. Whenever requested by WHMCS, You
shall execute such documents as WHMCS may deem necessary or appropriate to
confirm, maintain or perfect WHMCS’s ownership of the WHMCS IP Rights.
In the event WHMCS is unable, after using its reasonable endeavours (which
shall not require WHMCS to incur any costs), to secure Your signature on
any document or documents needed to apply for or to confirm, maintain or
perfect WHMCS’s ownership of the WHMCS IP Rights for any other reason
whatsoever, You hereby irrevocably designate and appoint WHMCS as Your duly
authorized attorney-in-fact, to act for and on Your behalf and stead to
execute and sign any document or documents and to do all other lawfully
permitted acts to confirm, maintain or perfect WHMCS’s ownership of the
WHMCS IP Rights with the same legal force and effect as if executed by You.
In the event You become aware that any third party is, or may be,
infringing the WHMCS IP Rights, You agree to notify WHMCS of such
fact.
3.5 Proprietary Notices. Third party trademarks, trade names,
product names and logos included in the Software may be the trademarks or
registered trademarks of their respective owners. You may not remove or
alter any trademark, trade names, product names, logo, copyright or other
proprietary notices, legends, symbols or labels in the Software.
3.6 Submissions. With respect to any feedback, suggestions or ideas
(“Submissions”) that You submit to WHMCS concerning the Software, or
any of WHMCS’s products or services, You agree that: (a) Your Submissions
will automatically become the property of WHMCS, without any compensation
to You; (b) WHMCS may use or redistribute the Submissions for any purpose
and in any way; (c) WHMCS is not obligated to review any Submissions; and
(d) WHMCS is not obligated to keep any Submissions confidential. In
addition, any illegal, lewd, abusive, profane or otherwise disturbing
submissions by You shall constitute a material breach of this Agreement
giving rise to WHMCS’s termination rights in Section 5.2.
4. Payments
& Refunds.
4.1 Payments. As a condition of the license granted to
You pursuant to this EULA, You shall pay WHMCS the amount(s) set forth in
Your Pricing and Term Agreement in accordance with the payment terms
contained therein.
4.2 Refunds. Refunds are only issued for software
failure. Refunds are not issued for server failure/issues, lack of features
or if Your hardware does not meet the Software Requirements. Refunds are
determined on individual circumstances and only issued once WHMCS’s
technical staff determines that WHMCS has a fault causing it to not run on
Your hardware. Installation charges are not refundable under any
circumstances. Refunds are not available after 1 month from purchase
date.
5 Term and Termination.
5.1 Term. This Agreement shall be
effective on the Effective Date and shall automatically expire at the end
of the Term.
5.2 Termination. WHMCS may terminate this Agreement (a) in
the event of Your breach of this Agreement (or a sublicensee’s breach of
a provision of a Third Party User’s agreement relating to the Software or
WHMCS) upon 30 days’ notice to You if such breach remains uncured after
the expiration of the 30 day notice period; (b) as set forth in Section
2.2; or (c) immediately without notice in the event of Your (or Your
sublicensee’s material breach of this Agreement. You acknowledge and
agree that any breach by You (or any Third Party User) of the following
provisions of the Agreement or any related provisions of a Third Party
User’s agreement relating to WHMCS or the Software shall each constitute
a material breach: (i) use of the Software in excess of the license grant
in Section 2.1 (License Grant); (ii) any purported or attempted assignment,
transfer, sale or other disposition or delegation of the Software in
violation of Section 2 (License) or Section 9.8 (Assignment); (iii) any
violation of Section 2.3 (Restrictions of Use) including without limitation
Section 2.3.4 (No Derivative Works; Reverse Engineering); (iv) any
violation of Section 2.4 (Monitoring of Software) including without
limitation any attempt, whether successful or not, to thwart, interfere
with, circumvent or block the operation of any aspect of WHMCS’s
monitoring of the Software; (v) any conduct inconsistent with the WHMCS IP
Rights as set forth in Section 3 (Intellectual Property Rights); (vi) any
breach of Section 4 (Payment); and (vii) any breach of Your warranties
under Section 6.1 (Mutual Warranties). Additionally, a material breach by
You of any agreement or contract between You and WHMCS, including without
limitation a breach of WHMCS’s Trademark Usage Policy, any applicable
EULA, or the Technical Support Agreement shall be deemed a material breach
of this Agreement and shall give rise to WHMCS’s right to terminate as
set forth in this Section 5.2. The foregoing list of material breaches is
a nonexclusive list.
5.3 Effect of Termination. Upon the expiration or
termination of this Agreement for any reason, (a) You must destroy all
copies of the Software, including any back-up copy; (b) You must uninstall
or delete the Software from the Licensed Server; and (c) WHMCS may without
notice and in its sole discretion terminate, suspend or disable access to
the Software by You or any Third Party User.
5.4 Survival. Sections 1
(Definitions), 2.4 (Monitoring of Software), 3 (Intellectual Property
Rights), 4 (Payments), 5 (Term and Termination), 6.3 (Disclaimer), 7
(Limitation on Liability), 8 (Indemnification) and 9 (Miscellaneous) shall
survive the termination or expiration of this Agreement for any reason.
6.
Warranties; Disclaimer.
6.1 Mutual Warranties. Each party hereto
warrants to the other party that: (a) such party has the full right, power
and authority to enter into this Agreement on behalf of itself and to
undertake to perform the acts required of it hereunder; (b) the execution
of this Agreement by such party, and the performance by such party of its
obligations and duties to the extent set forth hereunder, do not and will
not violate any agreement to which it is a party or by which it is
otherwise bound; (c) when executed and delivered by such party, this
Agreement will constitute the legal, valid and binding obligation of such
party, enforceable against such party in accordance with its
representations, warranties, terms and conditions; and (d) such party will
comply with all Applicable Laws related to the use and installation of the
Software and the performance of its obligations under this Agreement.
6.2 Limited Warranty. WHMCS warrants that, for a period of ninety days
from the date of delivery of the Software, when used with a hardware and
software configuration recommended by WHMCS, the Software will perform in
substantial conformance with the documentation supplied with the Software.
The limited warranty in this Section 6.2 shall not apply (a) if Your
version of the Software is a Beta Version; (b) if the Software has been
altered in any way by a party other than WHMCS; (c) the Software’s third
party components; or (d) if any failure or error arises out of use of the
Software with anything other than a WHMCS recommended hardware and software
configuration. Any misuse, accident, abuse, modification or misapplication
of the Software will void the limited warranty in this Section
6.2.
6.3 Disclaimer. EXCEPT AS SET FORTH IN THE LIMITED WARRANTY OF
SECTION 6.2, THE SOFTWARE LICENSED HEREUNDER IS PROVIDED "AS IS"
AND WHMCS HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR
IMPLIED, RELATING TO THE SOFTWARE, ITS THIRD PARTY COMPONENTS, AND ANY DATA
ACCESSED THEREFROM, OR THE ACCURACY, TIMELINESS, COMPLETENESS, OR ADEQUACY
OF THE SOFTWARE, ITS THIRD PARTY COMPONENTS, AND ANY DATA ACCESSED
THEREFROM, INCLUDING THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY,
SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND
NON-INFRINGEMENT. WHMCS DOES NOT WARRANT THAT THE SOFTWARE OR ITS THIRD
PARTY COMPONENTS ARE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. IF
THE SOFTWARE, ITS THIRD PARTY COMPONENTS, OR ANY DATA ACCESSED THEREFROM IS
DEFECTIVE, YOU ASSUME THE SOLE RESPONSIBILITY FOR THE ENTIRE COST OF ALL
REPAIR OR INJURY OF ANY KIND, EVEN IF WHMCS HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DEFECTS OR DAMAGES.
6.3.1 IF APPLICABLE LAW REQUIRES
ANY WARRANTIES WITH RESPECT TO THE SOFTWARE, ALL SUCH WARRANTIES ARE
LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DELIVERY OR THE
MINIMUM ALLOWED DURATION UNDER SUCH APPLICABLE LAW.
6.3.2 NO ORAL OR
WRITTEN INFORMATION OR ADVICE GIVEN BY WHMCS, ITS AFFILIATES, LICENSEES,
DEALERS, SUB-LICENSORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN
ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED IN SECTION 6.2.
6.3.3 SOME JURISDICTIONS DO NOT ALLOW RESTRICTIONS ON IMPLIED WARRANTIES
SO SOME OF THESE LIMITATIONS MAY NOT APPLY TO YOU.
7. Limitation of
Liability.
7.1 Lost Profits; Consequential Damages. TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW, WHMCS WILL NOT BE LIABLE FOR ANY LOST PROFITS,
COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, DAMAGES FOR THE
INABILITY TO USE EQUIPMENT OR ACCESS DATA, BUSINESS INTERRUPTION, OR FOR
ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, AND
UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING,
WITHOUT LIMITATION, UNDER ANY CONTRACT, NEGLIGENCE OR OTHER TORT THEORY OF
LIABILITY) EVEN IF WHMCS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
7.2 Total Cumulative Liability; Exclusive Remedy. EXCEPT FOR
AMOUNTS OWED BY YOU TO WHMCS UNDER SECTION 4, TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW, WHMCS’S AGGREGATE LIABILITY FOR DIRECT
DAMAGES, UNDER THIS AGREEMENT (CUMULATIVELY) SHALL BE LIMITED TO THE TOTAL
FEES COLLECTED BY WHMCS UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT FOR
ANY BREACH OF THE LIMITED WARRANTY OF SECTION 6.2 YOUR SOLE AND EXCLUSIVE
REMEDY AND WHMCS’S ENTIRE LIABILITY SHALL BE FOR WHMCS, AT WHMCS’S
ELECTION AND WITHIN ITS SOLE DISCRETION, TO USE ITS COMMERCIALLY REASONABLE
ENDEAVOURS TO (A) SUPPLY YOU WITH A REPLACEMENT COPY OF THE SOFTWARE THAT
SUBSTANTIALLY CONFORMS TO THE DOCUMENTATION INCLUDED WITH THE SOFTWARE; OR
(B) REFUND TO YOU YOUR LICENSE FEE FOR THE SOFTWARE; PROVIDED THAT YOU
REPORT ANY NON-COMPLIANCE WITH THE LIMITED WARRANTY OF SECTION 6.2 IN
WRITING TO WHMCS NO MORE THAN NINETY (90) DAYS FOLLOWING DELIVERY OF THE
SOFTWARE TO YOU.
8. Indemnification. You shall indemnify, defend and
hold harmless WHMCS and its directors, officers, staff, employees agents,
and affiliates and their respective successors, heirs and assigns and
affiliates (and their its directors, officers, staff, employees and agents
and their respective successors, heirs and assigns) (collectively, the
“WHMCS Parties”) from and against any liability, damage, loss or
expense (including reasonable lawyers’ fees and expenses of litigation)
incurred by or imposed upon the WHMCS Parties or any one of them in
connection with any claims, suits, actions, demands or judgments
(“Claims”) related directly or indirectly to or arising out of (a) a
breach of Your representations, warranties or obligations under this
Agreement; (b) in the event that You sublicense the right to use the
Software to any Third Party Users pursuant to Section 2.2 (Sublicensing),
(c) a breach of a Third Party User’s representations, warranties or
obligations under any provisions in a Third Party User’s agreement
relating to WHMCS or the Software; and (d) any Claims based upon or arising
from any allegation that a Third Party User was harmed due to any
termination, suspension or disabling of such user’s access to the
Software by WHMCS pursuant to the terms and conditions of this Agreement;
provided, however, that in any such case WHMCS or its affiliates, as
applicable, (x) provide You with prompt notice of any such claim; (y)
permit You to assume and control the defence of such action upon Your
written notice to WHMCS of Your intention to indemnify; and (z) upon Your
written request, and at no expense to WHMCS or its affiliates, provide to
You all available information and assistance reasonably necessary for You
to defend such claim. You will not enter into any settlement or compromise
of any such claim, which settlement or compromise would result in any
liability to the WHMCS Parties, without WHMCS’s prior written consent,
which will not unreasonably be withheld. You will pay any and all costs,
damages, and expenses, including, but not limited to, reasonable lawyers’
fees and costs awarded against or otherwise incurred by WHMCS or its
affiliates in connection with or arising from any such claim.
9.
Miscellaneous.
9.1 Force Majeure. No party will be liable for any
failure or delay in performance of any of its obligations hereunder if such
delay is due to acts of God, fires, flood, storm, explosions, earthquakes,
general Internet outages, acts of war or terrorism, riots, insurrection or
intervention of any government or authority; provided, however, that any
such delay or failure will be remedied by such party as soon as reasonably
possible. Upon the occurrence of a force majeure event, the party unable
to perform will, if and as soon as possible, provide written notice to the
other parties indicating that a force majeure event occurred and detailing
how such force majeure event impacts the performance of its obligations.
9.2 Independent Contractors. It is the intention of the parties that
WHMCS and You are, and will be deemed to be, independent contractors with
respect to the subject matter of this Agreement, and nothing contained in
this Agreement will be deemed or construed in any manner whatsoever as
creating any partnership, joint venture, employment, agency, fiduciary or
other similar relationship between WHMCS and You.
9.3 Choice of Law;
Venue; Jurisdiction. This Agreement and any disputes or claims arising out
of or in connection with its subject matter or formation (including
non-contractual disputes and claims) are governed by and construed in
accordance with the laws of England and Wales. The parties irrevocably
agree that the courts of England have exclusive jurisdiction to settle any
dispute or claim that arises out of or in connection with this Agreement or
its subject matter or formation (including non-contractual disputes and
claims).
9.4 Entire Agreement. This Agreement, together with all
Exhibits hereto, represents the entire agreement between the parties with
respect to the subject matter hereof and thereof and will supersede all
prior agreements and communications of the parties, oral or written.
9.5 Basis of Bargain. Section 6.2 (Limited Warranty), Section 7
(Limitations on Liability; Exclusive Remedies) and Section 8
(Indemnification) are fundamental elements of the basis of the agreement
between WHMCS and You and shall inure to the benefit of WHMCS. WHMCS would
not be able to provide the Software on an economic basis without such
limitations.
9.6 Severability. If any provision of this Agreement is held
to be invalid, illegal or unenforceable for any reason, such invalidity,
illegality or unenforceability will not affect any other provisions of this
Agreement, and this Agreement will be construed as if such invalid, illegal
or unenforceable provision had never been contained herein.
9.7 Amendment
or Modification. This Agreement is subject to change without prior notice
from WHMCS. You shall be deemed to have accepted any changes or
modifications by Your continuing use of the Software. Additionally, this
Agreement may not be amended, modified, or supplemented by You in any
manner, except by an instrument in writing signed and agreed to by WHMCS.
9.8 Assignment. This Agreement may not be assigned, transferred,
delegated, sold or otherwise disposed of, including without limitation by
operation of law, other than as expressly set forth in this Section 9.8.
This Agreement may be assigned, transferred, delegated, sold or otherwise
disposed of in its entirety: (a) by WHMCS in its sole discretion; (b) by
You with the prior written consent of WHMCS; and (c) as set forth in
Section 2.2 (License Transfers). In addition, WHMCS may delegate its
performance under this Agreement in whole or in part to one or more
affiliates, provided that WHMCS will remain liable and responsible for any
performance or obligation so delegated. A party’s permitted successors
or assignees must agree as a condition precedent to any assignment,
transfer or delegation to fully perform all applicable terms and conditions
of this Agreement. No party may assign this Agreement to any entity that
lacks sufficient assets and resources to continue to perform, to
contractually required standards, all assigned obligations for the
remainder of the Term. This Agreement will be binding upon and will inure
to the benefit of a party’s permitted successors and assigns. Any
purported assignment, transfer, delegation, sale or other disposition in
contravention of this Section 9.8, including without limitation by
operation of law, is null and void.
9.9 Waiver. Any of the provisions of
this Agreement may be waived by the party entitled to the benefit thereof.
No party will be deemed, by any act or omission, to have waived any of its
rights or remedies hereunder unless such waiver is in writing and signed by
the waiving party, and then only to the extent specifically set forth in
such writing. A waiver with reference to one event will not be construed
as continuing or as a bar to or waiver of any right or remedy as to a
subsequent event.
9.10 Remedies Cumulative. Except as expressly set forth
herein, no remedy conferred upon the parties by this Agreement is intended
to be exclusive of any other remedy, and each and every such remedy will be
cumulative and will be in addition to any other remedy given hereunder or
now or hereafter existing at law or in equity.
9.11 No Third Party
Beneficiaries. Except for the provisions of Clause 8 which are intended to
be enforceable by the Persons respectively referred to therein (each, a
"Beneficiary") by virtue of the Contracts (Rights of Third
Parties) Act 1999, the Parties do not intend that any term of this
Agreement should be enforceable, by virtue of the Contracts (Rights of
Third Parties) Act 1999, by any person who is not a party to this Agreement
(including without limitation any Third Party Users). Notwithstanding the
previous sentence, this Agreement may be terminated or varied in any way
and at any time by the Parties without the consent of any
Beneficiary.
9.12 Notices. All notices or questions relating to this
Agreement shall be directed to: WHMCS, Inc., Attn: Legal Department, Suite
17, Linford Forum, Rockingham Drive, Linford Wood, Milton Keynes, MK14 6LY,
United Kingdom. Any notice required to be given under this Agreement shall
be deemed given by WHMCS when sent to You by email, telephone, fax, or mail
to the contact information supplied by You to WHMCS in the Pricing and Term
Agreement. You may update such information from time to time upon written
notice to through the WMCS Client Area. Any failure by You to provide WHMCS
with updated contact information will not invalidate the effectiveness of
any notice sent by WHMCS to the contact information previously supplied by
You.
9.13 Export Controls. The parties agree to comply fully with all
Applicable Laws, or of any foreign government to or from where a party is
shipping, to in connection with the import, export or re-export, directly
or indirectly, of the Software mentioned in this
Agreement.
9.14 Time-Limited Claims. Regardless of any Applicable Law to
the contrary, You agree that any claim or cause of action arising out of or
related to the Software or this Agreement, must be filed within one year
after such claim or cause of action arose or be forever barred.