Technical Support Agreement
IMPORTANT: THIS TECHNICAL SUPPORT AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU (EITHER INDIVIDUALLY OR COLLECTIVELY ON BEHALF OF YOUR BUSINESS ENTITY) AND WHMCS LIMITED. READ IT CAREFULLY. AMONG OTHER PROVISIONS, IT CONTAINS TERMINATION AND WARRANTY INFORMATION AND LIABILITY DISCLAIMERS. BY CLICKING THE “I AGREE” BUTTON AND USING THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF THIS TECHNICAL SUPPORT AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MAY NOT USE THE SERVICES. CONTINUED USE OF THIS SOFTWARE SIGNIFIES YOUR CONTINUED ACCEPTANCE OF THESE TERMS AND ANY FUTURE CHANGES TO THEM.
1.Definitions.
1.1 “Agreement” means this Technical Support Agreement.
1.2 “Applicable Law” means applicable international, federal, state or local laws, statutes, ordinances, regulations or court orders.
1.3 “Beta Version” means any version of the Software released by WHMCS for testing as determined by WHMCS in its sole discretion, including without limitation versions of the Software designated by WHMCS as “BETA”.
1.4 “Effective Date” has the meaning given in the Support Pricing Agreement.
1.5 “EULA” means the applicable End-User License Agreement for the Software.
1.6 “Incident” means a request by you for assistance in addressing a single technical problem relating to the Software. WHMCS shall make the final determination as to what constitutes an “Incident” in its sole discretion.
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 Applicable Law, including all applications for and registrations of any of the foregoing.
1.8 “Licensee” means, as applicable, (i) an authorized third-party end user of the Software who obtained a Software License from You, or (ii) You
1.9 “Normal Business Hours” means (a) twenty-four hours a day, seven days a week in the case of technical support related Incidents; and (b) 8:00 a.m. to 5 p.m. Greenwich Mean Time during business days and excluding holidays in the case of billing related Incidents. WHMCS may amend the definition of “Normal Business Hours” from time to time in its sole discretion by providing notice of such change on its website.
1.10 “Priority Support” means the Services provided by WHMCS to individuals or entities who have purchased Priority Support from WHMCS.
1.11 “Priority Support Fees” has the meaning given in Section 4 (Priority Support Fees).
1.12 “Scheduled Service Outage” means a period of time specified by WHMCS during which WHMCS will not provide the Services.
1.13 “Services” means the technical support services provided by WHMCS in connection with this Agreement whether such services are provided via email, telephone support, the WHMCS website (including without limitation the WHMCS Client Area, the documentation, Frequently Asked Questions or discussion forums located on the website) or by any other means.
1.14 “Software” means the WHMCS software program(s) for which you are seeking the Services, 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.
1.15 “Standard Support” has the meaning given in Section 2.7.2 (Eligibility for Submission of Incidents).
1.16 “Submissions” has the meaning given in Section 3.5 (Submissions).
1.17 “Support Pricing Agreement” means, as applicable, (a) this Agreement and any other agreement entered into between you and WHMCS for the provision by WHMCS of Technical Support, as applicable, which sets forth (among other things) the term, any applicable support fees and the number of Incidents you may submit under the agreement; (b) any Pricing and Term Agreement entered into between you and WHMCS with respect to the Software which sets forth (among other things) the term, any applicable Support Fees and the number of Incidents you may submit under this Agreement; (c) any technical support provisions of the WHMCS EULA entered into between you and WHMCS; (d) the term, termination and the technical support provisions of any other agreement entered into between you and a WHMCS Licensee or reseller for the provision of technical support services related to the Software. The Support Pricing Agreement is hereby incorporated by reference and made a part of this Agreement as though fully set forth herein.
1.18 “Term” has the meaning given in the Support Pricing Agreement.
1.19 “Territory” means the world, except to the extent that the provision of the Services or the use or distribution of the Software in certain countries or regions would cause either party to violate Section 9.13 (Export Controls).
1.20 “Third Party Users” means, as applicable, (i) an authorized third-party end user of the Software who obtained a Software License from You, or (ii) You.
1.21 “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 the WHMCS logo. WHMCS may add to the foregoing nonexclusive list of Trademarks in its sole discretion from time to time.
1.22 “Unscheduled Service Outage” means a period of time during which WHMCS is unable to provide the Services or during which it is not commercially reasonable for WHMCS to provide the Services as a result of unforeseen circumstances including but not limited to force majeure events such as those set forth in Section 9.1 (Force Majeure).
1.23 “Updates” means any bug fixes, patches and other modifications of the Software provided by WHMCS.
1.24 “WHMCS” means WHMCS Limited.
1.25 “WHMCS Anonymous Usage Data” means all data collected by WHMCS in connection with the use of the Software by You, 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 server 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.
1.26 “WHMCS Client Area” means WHMCS’s customer service and Incident tracking system or such successor system as WHMCS may designate from time to time which is presently available at http://www.whmcs.com/members or such other URL as WHMCS may designate from time to time.
1.27 “WHMCS Licensee” means an individual or entity that has obtained one or more valid licenses for the Software.
1.28 “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.
2.Services.
2.1 Provision of Services by WHMCS. Subject to the terms and conditions of this Agreement, WHMCS shall use commercially reasonable efforts to provide You with the Services during the Term provided that you have not exceeded (a) the number of Incidents set forth by the Support Pricing Agreement; or (b) a commercially reasonable number of incidents as determined by WHMCS if the Support Pricing Agreement does not specify the maximum number of Incidents. Notwithstanding the foregoing, WHMCS may in its sole discretion elect to provide, to not provide or to provide on a limited basis (a) the Services for Standard Support; and (b) the Services for Beta Versions of the Software.
2.2 Normal Business Hours. WHMCS shall use commercially reasonable efforts to provide the Services during Normal Business Hours, except in the event of a Scheduled Service Outage or an Unscheduled Service Outage.
2.3 Scope of Services. WHMCS will provide the Services only in connection with Incidents that it determines are related to the Software or any third-party applications included with the Software. WHMCS will not provide the Services for Incidents that it determines are related to third-party software not included with the Software, operating systems, hardware or networks unless WHMCS determines, on a case-by-case basis and in its sole discretion, that such issues are reasonably related to the Software or any third-party applications included with the Software.
2.4 Web and Email Support. WHMCS shall use commercially reasonable efforts to provide the Services via its website using the WHMCS Client Area or via email communications. WHMCS shall provide the Services, and all Incidents shall be submitted, in the English language only.
2.5 Location of Services. WHMCS shall use commercially reasonable efforts to provide the Services at any facility it designates for the provision of such Services. The origin from which a particular Incident is submitted may be located in anywhere in the Territory. WHMCS shall not provide the Services “on site.”
2.6 Submission of Incidents.
2.6.1 WHMCS Client Area. Support must be purchased and all Incidents must be submitted via the WHMCS Client Area.
2.6.2 Submission Details. In order for WHMCS to provide the Services to you, you must provide all information requested by WHMCS with respect to each Incident. If you fail to provide sufficient detail regarding the Incident, WHMCS shall not be obligated to provide the Services to you and the limited warranty of Section 6.2 (Limited Warranty) shall not apply to the Incident.
2.7 Service Levels.
2.7.1 Standard Support. Any Licensee may submit Incidents to the WHMCS Client Area in the Support Center section of the WHMCS Client Area. Standard Support is provided on a “best efforts” basis with no guarantees of response time
2.7.2 Priority Support. WHMCS offers paid support which is available 8 hours a day, 5 days per week and has a 1 hour guaranteed response time during these hours. Any WHMCS Licensee is eligible to purchase Priority Support through the WHMCS Client Area. Pricing for Priority Support may be found in the WHMCS Client Area and is hereby incorporated into this Agreement by reference.
2.7.3 Subscription Requirements. Licensees are required to have a “Support & Updates” subscription enabled in order to receive Standard Support or Priority Support.
2.7.4 Bulk Discounts on Support Fees. If You are interested in purchasing (or prepaying for) bulk Priority Support tickets for multiple Incidents, please contact WHMCS for further details.
2.7.5 Priority of Support. WHMCS will use commercially reasonable efforts prioritize its response to Incidents depending upon the level of support and fees paid applicable to such Incidents. Notwithstanding the foregoing sentence, WHMCS may elect to prioritize its response to a given Incident depending upon the relative severity of the support issues reported in other Incidents pending in the WHMCS Client Area regardless of the type of support applicable to such Incidents.
2.7.6 Escalation of Incidents. WHMCS maintains internal escalation procedures with respect to Incidents. In the event that a WHMCS representative is unable to find a resolution to the Incident (assuming a resolution is commercially feasible), WHMCS will escalate the Incident in accordance with its internal escalation procedures. WHMCS may change its internal escalation system from time to time within its sole discretion.
2.7.7 Support Levels. Subject to Section 2.7.5 (Priority of Support), WHMCS will use commercially reasonable efforts to resolve all Incidents as soon as reasonably possible, but does not make any representations or warranties as to the timeliness of the resolution of any Incident. WHMCS shall resolve all Incidents subject to Section 2.8 (Resolution of Incidents).
2.8 Resolution of Incidents. In the event that WHMCS resolves your Incident, or makes a determination that no resolution is commercially feasible, WHMCS will provide you notice through the WHMCS Client Area and close the Incident on such system. Alternatively, WHMCS may determine whether a support issue raised in an Incident constitutes a bug in the Software (“Software Bug”) or a request for a new feature (“Feature Request”). If WHMCS determines that a support issue raised in an Incident constitutes a Software Bug or a Feature Request, WHMCS will close the Incident and determine whether such Software Bug or Feature Request should be forwarded to WHMCS’s development team for further consideration and possible correction or inclusion into the Software. Any information, feedback, ideas or suggestions you provide to WHMCS with respect to a Software Bug or Feature Request shall be deemed a Submission. WHMCS shall in its sole discretion determine: (a) whether an Incident has been resolved; (b) whether a resolution is commercially feasible; (c) whether a support issue raised in an Incident constitutes a Software Bug or Feature Request; and (d) whether or not and when to close an Incident. WHMCS will not provide the Services for closed Incidents.
2.9 Support Data. In order to provide the Services to you, WHMCS may collect information from you including but not limited to: (a) IP addresses, usernames and passwords necessary to login to the FTP, WHMCS Software or other means deemed necessary by WHMCS Staff; (b) the usernames and passwords necessary to login into any account affected by the Incident, including email accounts, WHMCS Licensee accounts, administrative accounts and other accounts; (c) other information that you voluntarily supply or that WHMCS requests in order to resolve your Incident; and (d) WHMCS Anonymous Usage Data ((a) through (d) collectively, “Support Data”). WHMCS will use commercially reasonable efforts to preserve the security of the Support Data by using reasonable physical and electronic security measures (except to the extent WHMCS is required or permitted to disclose, access or use such information by Applicable Law), but WHMCS cannot guarantee the security of such data. To the extent that Applicable Law requires that you obtain any consents, permissions or licenses from third parties or to give any notices or disclaimers to third parties prior your disclosure of Support Data to WHMCS, you agree to comply with such Applicable Laws prior your disclosure of Support Data to WHMCS.
2.10 License Exchange. You agree that this the terms and conditions of this Agreement and the Support Pricing Agreement shall supersede any prior agreement and between you and WHMCS applicable to any support services provided by WHMCS to you with respect to the Software.
2.11 Conduct. You agree that any illegal, lewd, abusive, profane or otherwise disturbing submissions by You to WHMCS shall constitute a material breach of this Agreement giving rise to WHMCS’s termination rights in Section 5.2.
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) the Services; and (d) any and all Submissions (collectively, “WHMCS IP Rights”).
3.2 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.
3.3 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 Submissions. With respect to any feedback, suggestions or ideas (“Submissions”) that you submit to WHMCS concerning the Software, Services, 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.
4 Priority Support Fees. As a condition of the provision of the Services by WHMCS under this Agreement, you shall pay WHMCS the amounts for Priority Support Fees You agreed to pay via the WHMCS Client Area in accordance with the payment terms contained therein. All Support Fees are subject to change at any time.
5 Term and Termination.
5.1 Term. This Agreement shall commence on the date of Your execution of this Agreement 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 upon 30 days notice to you if such breach remains uncured after the expiration of the 30 day notice period; or (b) immediately without notice in the event of Your material breach of this Agreement. You acknowledge and agree that any breach by You of the following provisions of the Agreement shall each constitute a material breach: (i) any conduct inconsistent with the WHMCS IP Rights as set forth in Section 3 (Intellectual Property Rights); (ii) any purported or attempted assignment, transfer, sale or other disposition or delegation of this Agreement or your rights and obligations with respect to this Agreement in violation of Section 9.8 (Assignment); (iii) any breach of Section 4 (Fees); and (iv) any breach of your representations and warranties under Section 6.1 (Mutual Representations). 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 Partner NOC 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 Survival. Sections 1 (Definitions), 3 (Intellectual Property Rights), 4 (Support Fees), 5 (Term and Termination), 6.3 (Disclaimer), 7 (Limitation on Liability), 8 (Indemnification) and 9 (Miscellaneous) shall survive 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 Services and the performance of its obligations under this Agreement.
6.2 Limited Warranty. WHMCS will use commercially reasonable efforts to resolve any Incident for which you have purchased Telephone Support. If WHMCS determines, pursuant to Section 2.8 (Resolution of Incidents), that it is us unable to resolve the Incident in a commercially feasible manner, WHMCS will refund any Support Fees associated solely with the telephone support.
6.3 Disclaimer. EXCEPT AS SET FORTH IN THE LIMITED WARRANTY OF SECTION 6.2, THE SERVICES ARE PROVIDED “AS IS” AND WHMCS HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICES, OR THE ACCURACY, TIMELINESS, COMPLETENESS, OR ADEQUACY OF THE SERVICES 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 SERVICES ARE OR SHALL BE ERROR-FREE OR WILL BE PROVIDED WITHOUT INTERRUPTION. IF THE SERVICES ARE 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 A DEFECT 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 FOR THE INDIVIDUAL INCIDENT SUPPORT PURCHASED UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT FOR ANY BREACH OF THE LIMITED WARRANTY IN SECTION 6.2 YOUR SOLE AND EXCLUSIVE REMEDY AND WHMCS’S ENTIRE LIABILITY SHALL BE FOR WHMCS TO REFUND THE SUPPORT FEES PAID FOR THAT INCIDENT. THE REMEDIES IN THE FOREGOING SENTENCE ARE THE SOLE AND EXCLUSIVE REMEDIES AVAILABLE TO YOU FOR BREACH OF EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SERVICES AND YOU MUST REPORT ANY NON-COMPLIANCE WITH THE LIMITED WARRANTY OF SECTION 6.2 IN WRITING TO WHMCS NO MORE THAN TEN (10) DAYS FOLLOWING CLOSURE OF THE TICKET.
8. Indemnification. You shall indemnify, defend and hold harmless WHMCS and its directors, officers, staff, employees and agents and their respective successors, heirs and assigns and WHMCS 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 submit Incidents on behalf of Licensees, (i) a breach of a Licensees’ representations, warranties or obligations under any provisions in a Third Party User’s support agreement relating to WHMCS, the Software or the Services; and (ii) any Claims based upon or arising from any allegation that a third-party Licensee was harmed due to any termination or suspension of the Services to such user 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 it 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 any 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 by WHMCS in its sole discretion. 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. This Agreement is made for the benefit of the parties only, and this Agreement is not for the benefit of, and was not created for the benefit of, any third parties. 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 Limited, Attn: General Counsel, 2550 North Loop West, Suite 500, Houston, TX 77092, United States. 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. You may update such information from time to time upon written notice to WHMCS at the address in this Section 9.12. 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.
1.Definitions.
1.1 “Agreement” means this Technical Support Agreement.
1.2 “Applicable Law” means applicable international, federal, state or local laws, statutes, ordinances, regulations or court orders.
1.3 “Beta Version” means any version of the Software released by WHMCS for testing as determined by WHMCS in its sole discretion, including without limitation versions of the Software designated by WHMCS as “BETA”.
1.4 “Effective Date” has the meaning given in the Support Pricing Agreement.
1.5 “EULA” means the applicable End-User License Agreement for the Software.
1.6 “Incident” means a request by you for assistance in addressing a single technical problem relating to the Software. WHMCS shall make the final determination as to what constitutes an “Incident” in its sole discretion.
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 Applicable Law, including all applications for and registrations of any of the foregoing.
1.8 “Licensee” means, as applicable, (i) an authorized third-party end user of the Software who obtained a Software License from You, or (ii) You
1.9 “Normal Business Hours” means (a) twenty-four hours a day, seven days a week in the case of technical support related Incidents; and (b) 8:00 a.m. to 5 p.m. Greenwich Mean Time during business days and excluding holidays in the case of billing related Incidents. WHMCS may amend the definition of “Normal Business Hours” from time to time in its sole discretion by providing notice of such change on its website.
1.10 “Priority Support” means the Services provided by WHMCS to individuals or entities who have purchased Priority Support from WHMCS.
1.11 “Priority Support Fees” has the meaning given in Section 4 (Priority Support Fees).
1.12 “Scheduled Service Outage” means a period of time specified by WHMCS during which WHMCS will not provide the Services.
1.13 “Services” means the technical support services provided by WHMCS in connection with this Agreement whether such services are provided via email, telephone support, the WHMCS website (including without limitation the WHMCS Client Area, the documentation, Frequently Asked Questions or discussion forums located on the website) or by any other means.
1.14 “Software” means the WHMCS software program(s) for which you are seeking the Services, 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.
1.15 “Standard Support” has the meaning given in Section 2.7.2 (Eligibility for Submission of Incidents).
1.16 “Submissions” has the meaning given in Section 3.5 (Submissions).
1.17 “Support Pricing Agreement” means, as applicable, (a) this Agreement and any other agreement entered into between you and WHMCS for the provision by WHMCS of Technical Support, as applicable, which sets forth (among other things) the term, any applicable support fees and the number of Incidents you may submit under the agreement; (b) any Pricing and Term Agreement entered into between you and WHMCS with respect to the Software which sets forth (among other things) the term, any applicable Support Fees and the number of Incidents you may submit under this Agreement; (c) any technical support provisions of the WHMCS EULA entered into between you and WHMCS; (d) the term, termination and the technical support provisions of any other agreement entered into between you and a WHMCS Licensee or reseller for the provision of technical support services related to the Software. The Support Pricing Agreement is hereby incorporated by reference and made a part of this Agreement as though fully set forth herein.
1.18 “Term” has the meaning given in the Support Pricing Agreement.
1.19 “Territory” means the world, except to the extent that the provision of the Services or the use or distribution of the Software in certain countries or regions would cause either party to violate Section 9.13 (Export Controls).
1.20 “Third Party Users” means, as applicable, (i) an authorized third-party end user of the Software who obtained a Software License from You, or (ii) You.
1.21 “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 the WHMCS logo. WHMCS may add to the foregoing nonexclusive list of Trademarks in its sole discretion from time to time.
1.22 “Unscheduled Service Outage” means a period of time during which WHMCS is unable to provide the Services or during which it is not commercially reasonable for WHMCS to provide the Services as a result of unforeseen circumstances including but not limited to force majeure events such as those set forth in Section 9.1 (Force Majeure).
1.23 “Updates” means any bug fixes, patches and other modifications of the Software provided by WHMCS.
1.24 “WHMCS” means WHMCS Limited.
1.25 “WHMCS Anonymous Usage Data” means all data collected by WHMCS in connection with the use of the Software by You, 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 server 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.
1.26 “WHMCS Client Area” means WHMCS’s customer service and Incident tracking system or such successor system as WHMCS may designate from time to time which is presently available at http://www.whmcs.com/members or such other URL as WHMCS may designate from time to time.
1.27 “WHMCS Licensee” means an individual or entity that has obtained one or more valid licenses for the Software.
1.28 “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.
2.Services.
2.1 Provision of Services by WHMCS. Subject to the terms and conditions of this Agreement, WHMCS shall use commercially reasonable efforts to provide You with the Services during the Term provided that you have not exceeded (a) the number of Incidents set forth by the Support Pricing Agreement; or (b) a commercially reasonable number of incidents as determined by WHMCS if the Support Pricing Agreement does not specify the maximum number of Incidents. Notwithstanding the foregoing, WHMCS may in its sole discretion elect to provide, to not provide or to provide on a limited basis (a) the Services for Standard Support; and (b) the Services for Beta Versions of the Software.
2.2 Normal Business Hours. WHMCS shall use commercially reasonable efforts to provide the Services during Normal Business Hours, except in the event of a Scheduled Service Outage or an Unscheduled Service Outage.
2.3 Scope of Services. WHMCS will provide the Services only in connection with Incidents that it determines are related to the Software or any third-party applications included with the Software. WHMCS will not provide the Services for Incidents that it determines are related to third-party software not included with the Software, operating systems, hardware or networks unless WHMCS determines, on a case-by-case basis and in its sole discretion, that such issues are reasonably related to the Software or any third-party applications included with the Software.
2.4 Web and Email Support. WHMCS shall use commercially reasonable efforts to provide the Services via its website using the WHMCS Client Area or via email communications. WHMCS shall provide the Services, and all Incidents shall be submitted, in the English language only.
2.5 Location of Services. WHMCS shall use commercially reasonable efforts to provide the Services at any facility it designates for the provision of such Services. The origin from which a particular Incident is submitted may be located in anywhere in the Territory. WHMCS shall not provide the Services “on site.”
2.6 Submission of Incidents.
2.6.1 WHMCS Client Area. Support must be purchased and all Incidents must be submitted via the WHMCS Client Area.
2.6.2 Submission Details. In order for WHMCS to provide the Services to you, you must provide all information requested by WHMCS with respect to each Incident. If you fail to provide sufficient detail regarding the Incident, WHMCS shall not be obligated to provide the Services to you and the limited warranty of Section 6.2 (Limited Warranty) shall not apply to the Incident.
2.7 Service Levels.
2.7.1 Standard Support. Any Licensee may submit Incidents to the WHMCS Client Area in the Support Center section of the WHMCS Client Area. Standard Support is provided on a “best efforts” basis with no guarantees of response time
2.7.2 Priority Support. WHMCS offers paid support which is available 8 hours a day, 5 days per week and has a 1 hour guaranteed response time during these hours. Any WHMCS Licensee is eligible to purchase Priority Support through the WHMCS Client Area. Pricing for Priority Support may be found in the WHMCS Client Area and is hereby incorporated into this Agreement by reference.
2.7.3 Subscription Requirements. Licensees are required to have a “Support & Updates” subscription enabled in order to receive Standard Support or Priority Support.
2.7.4 Bulk Discounts on Support Fees. If You are interested in purchasing (or prepaying for) bulk Priority Support tickets for multiple Incidents, please contact WHMCS for further details.
2.7.5 Priority of Support. WHMCS will use commercially reasonable efforts prioritize its response to Incidents depending upon the level of support and fees paid applicable to such Incidents. Notwithstanding the foregoing sentence, WHMCS may elect to prioritize its response to a given Incident depending upon the relative severity of the support issues reported in other Incidents pending in the WHMCS Client Area regardless of the type of support applicable to such Incidents.
2.7.6 Escalation of Incidents. WHMCS maintains internal escalation procedures with respect to Incidents. In the event that a WHMCS representative is unable to find a resolution to the Incident (assuming a resolution is commercially feasible), WHMCS will escalate the Incident in accordance with its internal escalation procedures. WHMCS may change its internal escalation system from time to time within its sole discretion.
2.7.7 Support Levels. Subject to Section 2.7.5 (Priority of Support), WHMCS will use commercially reasonable efforts to resolve all Incidents as soon as reasonably possible, but does not make any representations or warranties as to the timeliness of the resolution of any Incident. WHMCS shall resolve all Incidents subject to Section 2.8 (Resolution of Incidents).
2.8 Resolution of Incidents. In the event that WHMCS resolves your Incident, or makes a determination that no resolution is commercially feasible, WHMCS will provide you notice through the WHMCS Client Area and close the Incident on such system. Alternatively, WHMCS may determine whether a support issue raised in an Incident constitutes a bug in the Software (“Software Bug”) or a request for a new feature (“Feature Request”). If WHMCS determines that a support issue raised in an Incident constitutes a Software Bug or a Feature Request, WHMCS will close the Incident and determine whether such Software Bug or Feature Request should be forwarded to WHMCS’s development team for further consideration and possible correction or inclusion into the Software. Any information, feedback, ideas or suggestions you provide to WHMCS with respect to a Software Bug or Feature Request shall be deemed a Submission. WHMCS shall in its sole discretion determine: (a) whether an Incident has been resolved; (b) whether a resolution is commercially feasible; (c) whether a support issue raised in an Incident constitutes a Software Bug or Feature Request; and (d) whether or not and when to close an Incident. WHMCS will not provide the Services for closed Incidents.
2.9 Support Data. In order to provide the Services to you, WHMCS may collect information from you including but not limited to: (a) IP addresses, usernames and passwords necessary to login to the FTP, WHMCS Software or other means deemed necessary by WHMCS Staff; (b) the usernames and passwords necessary to login into any account affected by the Incident, including email accounts, WHMCS Licensee accounts, administrative accounts and other accounts; (c) other information that you voluntarily supply or that WHMCS requests in order to resolve your Incident; and (d) WHMCS Anonymous Usage Data ((a) through (d) collectively, “Support Data”). WHMCS will use commercially reasonable efforts to preserve the security of the Support Data by using reasonable physical and electronic security measures (except to the extent WHMCS is required or permitted to disclose, access or use such information by Applicable Law), but WHMCS cannot guarantee the security of such data. To the extent that Applicable Law requires that you obtain any consents, permissions or licenses from third parties or to give any notices or disclaimers to third parties prior your disclosure of Support Data to WHMCS, you agree to comply with such Applicable Laws prior your disclosure of Support Data to WHMCS.
2.10 License Exchange. You agree that this the terms and conditions of this Agreement and the Support Pricing Agreement shall supersede any prior agreement and between you and WHMCS applicable to any support services provided by WHMCS to you with respect to the Software.
2.11 Conduct. You agree that any illegal, lewd, abusive, profane or otherwise disturbing submissions by You to WHMCS shall constitute a material breach of this Agreement giving rise to WHMCS’s termination rights in Section 5.2.
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) the Services; and (d) any and all Submissions (collectively, “WHMCS IP Rights”).
3.2 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.
3.3 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 Submissions. With respect to any feedback, suggestions or ideas (“Submissions”) that you submit to WHMCS concerning the Software, Services, 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.
4 Priority Support Fees. As a condition of the provision of the Services by WHMCS under this Agreement, you shall pay WHMCS the amounts for Priority Support Fees You agreed to pay via the WHMCS Client Area in accordance with the payment terms contained therein. All Support Fees are subject to change at any time.
5 Term and Termination.
5.1 Term. This Agreement shall commence on the date of Your execution of this Agreement 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 upon 30 days notice to you if such breach remains uncured after the expiration of the 30 day notice period; or (b) immediately without notice in the event of Your material breach of this Agreement. You acknowledge and agree that any breach by You of the following provisions of the Agreement shall each constitute a material breach: (i) any conduct inconsistent with the WHMCS IP Rights as set forth in Section 3 (Intellectual Property Rights); (ii) any purported or attempted assignment, transfer, sale or other disposition or delegation of this Agreement or your rights and obligations with respect to this Agreement in violation of Section 9.8 (Assignment); (iii) any breach of Section 4 (Fees); and (iv) any breach of your representations and warranties under Section 6.1 (Mutual Representations). 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 Partner NOC 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 Survival. Sections 1 (Definitions), 3 (Intellectual Property Rights), 4 (Support Fees), 5 (Term and Termination), 6.3 (Disclaimer), 7 (Limitation on Liability), 8 (Indemnification) and 9 (Miscellaneous) shall survive 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 Services and the performance of its obligations under this Agreement.
6.2 Limited Warranty. WHMCS will use commercially reasonable efforts to resolve any Incident for which you have purchased Telephone Support. If WHMCS determines, pursuant to Section 2.8 (Resolution of Incidents), that it is us unable to resolve the Incident in a commercially feasible manner, WHMCS will refund any Support Fees associated solely with the telephone support.
6.3 Disclaimer. EXCEPT AS SET FORTH IN THE LIMITED WARRANTY OF SECTION 6.2, THE SERVICES ARE PROVIDED “AS IS” AND WHMCS HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICES, OR THE ACCURACY, TIMELINESS, COMPLETENESS, OR ADEQUACY OF THE SERVICES 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 SERVICES ARE OR SHALL BE ERROR-FREE OR WILL BE PROVIDED WITHOUT INTERRUPTION. IF THE SERVICES ARE 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 A DEFECT 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 FOR THE INDIVIDUAL INCIDENT SUPPORT PURCHASED UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT FOR ANY BREACH OF THE LIMITED WARRANTY IN SECTION 6.2 YOUR SOLE AND EXCLUSIVE REMEDY AND WHMCS’S ENTIRE LIABILITY SHALL BE FOR WHMCS TO REFUND THE SUPPORT FEES PAID FOR THAT INCIDENT. THE REMEDIES IN THE FOREGOING SENTENCE ARE THE SOLE AND EXCLUSIVE REMEDIES AVAILABLE TO YOU FOR BREACH OF EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SERVICES AND YOU MUST REPORT ANY NON-COMPLIANCE WITH THE LIMITED WARRANTY OF SECTION 6.2 IN WRITING TO WHMCS NO MORE THAN TEN (10) DAYS FOLLOWING CLOSURE OF THE TICKET.
8. Indemnification. You shall indemnify, defend and hold harmless WHMCS and its directors, officers, staff, employees and agents and their respective successors, heirs and assigns and WHMCS 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 submit Incidents on behalf of Licensees, (i) a breach of a Licensees’ representations, warranties or obligations under any provisions in a Third Party User’s support agreement relating to WHMCS, the Software or the Services; and (ii) any Claims based upon or arising from any allegation that a third-party Licensee was harmed due to any termination or suspension of the Services to such user 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 it 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 any 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 by WHMCS in its sole discretion. 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. This Agreement is made for the benefit of the parties only, and this Agreement is not for the benefit of, and was not created for the benefit of, any third parties. 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 Limited, Attn: General Counsel, 2550 North Loop West, Suite 500, Houston, TX 77092, United States. 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. You may update such information from time to time upon written notice to WHMCS at the address in this Section 9.12. 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.
Last Updated: September 2013