PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THE HOSTING OR SUPPORT SERVICES OFFERED BY AUTOMATTIC, INC. (“AUTOMATTIC”).  THIS AGREEMENT INCLUDES AND IS OFFERED SUBJECT TO YOUR ACCEPTANCE WITHOUT MODIFICATION OF ALL OF THE TERMS AND CONDITIONS CONTAINED IN THE ORDER FORM, THE VIP SERVICES AGREEMENT BELOW, ALL EXHIBITS THERETO AND ALL OTHER OPERATING RULES, POLICIES (INCLUDING, WITHOUT LIMITATION, AUTOMATTIC’S PRIVACY POLICY, CURRENTLY LOCATED AT http://automattic.com/privacy) AND PROCEDURES THAT MAY BE PUBLISHED FROM TIME TO TIME ON THE WEBSITE BY AUTOMATTIC (COLLECTIVELY, THE “AGREEMENT”).  BY USING THE HOSTING OR SUPPORT SERVICES IN ANY MANNER, OR BY SIGNING OR SUBMITTING THE WRITTEN OR ONLINE ORDER FORM TO WHICH THESE TERMS AND CONDITIONS RELATE (THE “ORDER FORM”) (AS APPLICABLE) YOU OR THE ENTITY YOU REPRESENT (“CUSTOMER”) AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS.

CAPITALIZED TERMS USED HEREIN BUT NOT DEFINED SHALL HAVE THE MEANING ASCRIBED TO THEM IN THE ORDER FORM.

  1. Hosting. Subject to the terms and conditions of this Agreement, including Customer’s payment of all applicable fees, by selecting WordPress.com VIP Hosting Services (“Hosting Services”) on the Order Form, (a) Automattic shall use reasonable commercial efforts to provide Customer with Hosting Services as and to the extent set forth in Automattic’s then-current Hosting Services Terms, as they may change from time to time (the currently effective version of which is found below and labeled as Exhibit B), and (b) at all times when using the Hosting Services, Customer agrees to comply with Automattic’s then-current VIP Hosting Terms of Service (the “Automattic TOS”), the current version of which is found below and labeled as Exhibit C.  Customer shall use reasonable commercial efforts to provide Automattic with thirty (30) days prior notice in the event that Customer plans to significantly increase the volume of its usage of the Hosting Services on any particular Customer site.
  2. VIP Support.  So long as the Support period for the hosted WordPress.com product (the “Product”) remains in effect, all applicable fees have been timely paid for each annual Support period and Customer otherwise remains in full compliance with the terms of this Agreement, Automattic will use reasonable commercial efforts to provide support services for that Product, as well as Customer’s custom code present in their themes and plugins for such Product, as and to the extent described in Automattic’s then-current standard Support and Maintenance Services Terms applicable to that Product, as they may change from time to time (the currently effective version of which is found below, labeled as Exhibit A) (“Support”).  Customer will agree to submit Support requests to Automattic via the identified contact set forth on the Order Form, or through one back up contact.  Requests outside of these contacts will not be worked by Automattic without consent of the contact.  Customer can change the identified contact for this service contract periodically with notification to Automattic.
  3. Add-on Services.  Subject to the terms and conditions of this Agreement, including Customer’s payment of all applicable fees, if Customer has selected one or more other additional services on the Order Form (“Add-on Services”), then Automattic shall use reasonable commercial efforts to provide such Add-on Services as and to the extent described in Automattic’s then-current standard Add-on Services Terms applicable to such Add-on Service, as they may change from time to time (the “Add-on Services Terms,” the currently effective version of which is available at http://vip.wordpress.com/our-services/#hosting-add-ons which is incorporated herein by this reference).
  4. Fees and Payment. Fees for Support (“Support Fees”), Add-on Services (“Add-on Services Fees”) and Hosting Services (“Hosting Fees”) are initially as set forth on the applicable Order Form.  Automattic may change pricing for any services and shall provide Customer with notice of any pricing changes, provided that such notice must be given at least thirty (30) days prior to the ninety (90) day end-of-term renewal period referenced in Section 5; all pricing changes will become effective as of the beginning of the Renewal Term that immediately follows the pricing change notice.  Automattic will invoice all applicable Hosting Fees, Support Fees and Add-On Services Fees monthly in advance and Customer shall pay such fees within thirty (30) days of the date of receipt of an invoice from Automattic.  All payments shall be made in the currency of, and within the borders of the United States. Any payments more than thirty (30) days overdue will bear a late payment fee of 1.5% per month, or, if lower, the maximum rate allowed by law. In addition, Customer will pay all taxes, shipping, duties, withholdings, backup withholding and the like; when Automattic has the legal obligation to pay or collect such taxes, the appropriate amount shall paid by Customer directly to Automattic. Customer will reimburse Automattic for all reasonable travel and other related expenses incurred by Automattic in its performance hereunder, provided that Customer approves such expenses in advance.
  5. Term; Termination.  This Agreement shall commence as of the Effective Date and shall continue for the Initial Term set forth on the Order Form (the “Initial Term”).  Following the Initial Term, this Agreement shall automatically renew for additional successive terms of equal length to the Initial Term (each, a “Renewal Term”) unless either party gives notice to the other party of its intention not to renew this Agreement no later than thirty (30) days before the end of the Initial Term or then-current Renewal Term, as applicable. The Initial Term, together with any subsequent Renewal Term(s), shall be collectively referred to as the “Term.”  Either party may terminate this Agreement by written notice to the other party in the event that such other party materially breaches this Agreement and does not materially cure such breach within thirty (30) days of such notice.
  6. Warranty Disclaimer. All products, Support Services, Hosting Services, Add-On Services and any other services are provided “as is” and without warranty of any kind from anyone, including without limitation, any warranty of merchantability or fitness for a particular purpose or non-infringement, all of which are hereby expressly disclaimed. Further, Automattic does not warrant results or freedom from bugs or uninterrupted use.
  7. Limitation of Liability. Notwithstanding anything else herein or otherwise, and except for bodily injury, neither Automattic nor any of its suppliers or licensors shall be liable or obligated with respect to the subject matter hereof or under any contract, negligence, strict liability or other legal or equitable theory (i) for any amounts in excess in the aggregate of the fees paid to it hereunder with respect to the applicable product or service during the six month period prior to the cause of action; (ii) for any cost of procurement of substitute goods, technology, services or rights; (iii) for any incidental, consequential or punitive damages; (iv) for interruption of use or loss of data; or (v) for any matter beyond its reasonable control. The products and services are not designed, manufactured, or intended for use in hazardous environments requiring fail-safe performance where the failure of the product could lead directly to death, personal injury, or significant physical or environmental damage. The parties agree that this section represents a reasonable allocation of risk and that Automattic would not proceed in the absence of such allocation.
  8. Identification. Automattic may use Customer’s name and logo in client listings. Automattic may issue a press release announcing the relationship contemplated hereby; Customer shall have the right to approve such press release prior to publication, which approval shall not unreasonably be withheld.  Further, Customer’s site(s) hosted on the Hosting Services will contain a “Powered by WordPress.com VIP” logo (or similar attribution).
  9. Miscellaneous. The parties shall be independent contractors under this Agreement, and nothing herein shall constitute either party as the employer, employee, agent, or representative of the other party, or both parties as joint venturers or partners for any purpose.  Neither this Agreement nor any Support is assignable or transferable by Customer (and any attempt to do so shall be void); Automattic may assign and transfer any rights and/or obligations. The provisions hereof are for the benefit of the parties only and not for any other person or entity. Any notice, report, approval, authorization, agreement or consent required or permitted hereunder shall be in writing or by email; notices shall be sent to the address (physical or email) the applicable party has or may provide by notice or, if there is no such address, the most recent address (physical or email) the party giving notice can locate using reasonable efforts. No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any partial exercise of any right or power hereunder preclude further exercise. If any provision shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this arrangement shall otherwise remain in full force and effect and enforceable. This agreement shall be deemed to have been made in, and shall be construed pursuant to the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act. These Terms & Conditions, together with the Order Form, the Automattic , the Add-on Services Terms, and any other terms and conditions referenced herein are the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter hereof ; however, any pre-printed or standard terms of any purchase order, confirmation, or similar form, even if signed by the parties after the effectiveness hereof, shall have no force or effect.  Any waivers by the parties with respect to this Agreement must be made in writing.  Other than pricing changes (covered under Section 4), Automattic may amend this Agreement at any time by giving one hundred (100) days prior notice to Customer at the address (email or physical) set forth on the Order Form; provided that any such amendment shall not be effective until the commencement of first Renewal Term to follow such notice.  In the event of a conflict between these Terms & Conditions, the Order Form, the Automattic TOS, or the Add-on Services Terms, the following order of precedence shall apply: (1) the Order Form; (2) these Terms & Conditions, (3) the Add-on Services Terms, and (4) the Automattic TOS. Each party’s acceptance of this Agreement was and is expressly conditional upon the other’s acceptance of the terms contained in the Agreement to the exclusion of all other terms.  The substantially prevailing party in any action to enforce this agreement will be entitled to recover its attorney’s fees and costs in connection with such action. As defined in FAR section 2.101, DFAR section 252.227-7014(a)(1) and DFAR section 252.227-7014(a)(5) or otherwise, all Products and accompanying documentation provided by Automattic are “commercial items,” “commercial computer software” and/or “commercial computer software documentation.”


Exhibit A

VIP Support and Maintenance Services Terms

Who should use VIP Support?
Anyone who needs extra help or peace of mind running their WordPress installation, though we primarily expect corporate users and other large-scale WordPress deployments to sign up. VIP Support is also required for those who have VIP Hosting to support their custom themes and plugins on their sites.

Who provides the support?
The core development team behind the WordPress software and the WordPress.com hosted service which operates tens of millions of sites using the WordPress software.

How does support work?
When you sign up for VIP Support you get access to our private support desk. A support request is initiated through the support desk or via your site’s dashboard.

How are bugs fixed?
For Critical Core Bugs that you report, we will work on a fix and deploy is ASAP.

For Custom Code Bugs that you report, we will respond and begin to work on a fix within the Response Time set forth on the Order Form, and will provide you with ongoing progress updates thereafter.

For Non-Critical Bugs that you report, we will use commercially reasonable efforts to develop and push out a fix with the next release.

“Critical Core Bugs” are bugs in the core WordPress.com service (i.e., not Custom Code Bugs) which prevent you from accessing or using the service, or prevent end users from accessing your site.

“Custom Code Bugs” are bugs in your custom code or themes.

“Non-Critical Bugs” are bugs in the core WordPress.com service which are not Critical Core Bugs or Customer Code Bugs.

How does the on-site visit work ?
We’ll fly out to your offices and meet directly with your developers for a full day. A week before the visit, you’ll send us an agenda and/or a list of questions that you’d like covered, and as long as it’s WordPress related, we’ll address them as we work with your team.

What does per seat mean?
One seat equals one contact person. When you sign up for a support contract you will specify a contact person who will be interacting with us. If you would like to have multiple people interact with us, you will need to buy multiple subscriptions. We prefer this model to one that charges per server or per number of sites that you are operating. With a single contact you may also specify an alternate for instances where your main contact is on vacation.

What issues aren’t covered by VIP Support?
We cover all issues directly related to WordPress and its plugins and themes, as long as they are either custom or GPL compatible. The goal is to work with your developers to troubleshoot any issues, help optimize your WordPress, and offer best practices.  If you have systems issues that fall outside of WordPress—for example, a problem that is specific to your file storage configuration, CSS, javascript, etc.—we may not be able to assist.

Exhibit B

VIP Hosting Services Terms

Automattic’s VIP Hosting Services include the following:  

  • Hosting of your site or sites on the Automattic WordPress.com VIP infrastructure, in a manner consistent with industry standards.
  • Standard hosting-related services:
    • Load Balancing and Fault Tolerance;
    • Regular backup of your site data;
    • Security Compliance, and Performance and Reliability Monitoring; and
    • Quality assurance testing and redundant systems
  • Unlimited traffic, unlimited bandwidth, and unlimited storage
  • Commercial Akismet service

* * * * * * * * * *

Exhibit C

VIP Hosting Terms of Service

The following terms and conditions govern all use of the WordPress.com website (the “Website”) by customers who have entered into this Agreement with Automattic for a subscription to the WordPress.com VIP hosting service (together with the Website and all content, services and products available at or through the Website the “VIP Hosting Service”).

  1. Your WordPress.com Account and Site.  If you create a site on the VIP Hosting Service, you are responsible for maintaining the security of your account and site, and you are fully responsible for all activities that occur under the account and any other actions taken in connection with the site. You must not describe or assign keywords to your site in a misleading or unlawful manner, including in a manner intended to trade on the name or reputation of others, and Automattic may change or remove any description or keyword that it considers inappropriate or unlawful, or otherwise likely to cause Automattic liability. You must immediately notify Automattic of any unauthorized uses of your site, your account or any other breaches of security. Automattic will not be liable for any acts or omissions by you, including any damages of any kind incurred as a result of such acts or omissions.
  2. Responsibility of Contributors.  If you operate a site, comment on a site or blog, post material to the VIP Hosting Service, post links on the VIP Hosting Service, or otherwise make (or allow any third party to make) material available by means of the VIP Hosting Service (any such material, “Content”), you are entirely responsible for the content of, and any harm resulting from, that Content. That is the case regardless of whether the Content in question constitutes text, graphics, an audio file, or computer software. By making Content available, you represent and warrant that:
    1. the downloading, copying and use of the Content will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark or trade secret rights, of any third party;
    2. if your employer has rights to intellectual property you create, you have either (i) received permission from your employer to post or make available the Content, including but not limited to any software, or (ii) secured from your employer a waiver as to all rights in or to the Content;
    3. you have fully complied with any third-party licenses relating to the Content, and have done all things necessary to successfully pass through to end users any required terms;
    4. the Content does not contain or install any viruses, worms, malware, Trojan horses or other harmful or destructive content;
    5. the Content is not spam, is not machine- or randomly-generated, and does not contain unethical or unwanted commercial content designed to drive traffic to third party sites or boost the search engine rankings of third party sites, or to further unlawful acts (such as phishing) or mislead recipients as to the source of the material (such as spoofing);
    6. the Content is not pornographic, does not contain threats or incite violence towards individuals or entities, and does not violate the privacy or publicity rights of any third party;
    7. your site is not getting advertised via unwanted electronic messages such as spam links on newsgroups, email lists, other blogs and web sites, and similar unsolicited promotional methods;
    8. your site is not named in a manner that misleads your readers into thinking that you are another person or company. For example, your site’s URL or name is not the name of a person other than yourself or company other than your own; and
    9. you have, in the case of Content that includes computer code, accurately categorized and/or described the type, nature, uses and effects of the materials, whether requested to do so by Automattic or otherwise.

You retain ownership of all Content that you submit to the VIP Hosting Service.  However, by submitting Content to Automattic for inclusion on the VIP Hosting Service, you grant Automattic a non-exclusive, perpetual, transferable, sublicensable, world-wide, royalty-free license to use, reproduce, excerpt, re-format, display, distribute, adapt and publish the Content for the purpose of promoting or disseminating the Content, or warrant that the Content is under a Creative Commons BY or BY-SA license.  If you delete Content, Automattic will use reasonable efforts to remove it from the VIP Hosting Service, but you acknowledge that caching or references to the Content may not be made immediately unavailable.

Without limiting any of the foregoing representations or warranties, Automattic has the right (though not the obligation) to, in Automattic’s sole discretion (i) refuse or remove any content that, in Automattic’s reasonable opinion, violates any Automattic policy or is in any way harmful or objectionable, or (ii) terminate or deny access to and use of the VIP Hosting Service to any individual or entity for any reason, in Automattic’s sole discretion. Automattic will have no obligation to provide a refund of any amounts previously paid.

  1. Responsibility of Website Visitors. Automattic has not reviewed, and cannot review, all of the material, including computer software, posted to the Website, and cannot therefore be responsible for that material’s content, use or effects. By operating the Website, Automattic does not represent or imply that it endorses the material there posted, or that it believes such material to be accurate, useful or non-harmful. You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content. The Website may contain content that is offensive, indecent, or otherwise objectionable, as well as content containing technical inaccuracies, typographical mistakes, and other errors. The Website may also contain material that violates the privacy or publicity rights, or infringes the intellectual property and other proprietary rights, of third parties, or the downloading, copying or use of which is subject to additional terms and conditions, stated or unstated. Automattic disclaims any responsibility for any harm resulting from the use by visitors of the Website, or from any downloading by those visitors of content there posted.
  2. Content Posted on Other Websites. We have not reviewed, and cannot review, all of the material, including computer software, made available through the websites and webpages to which the Website links, and that link to the Website. Automattic does not have any control over those non-WordPress websites and webpages, and is not responsible for their contents or their use. By linking to a non-WordPress website or webpage, Automattic does not represent or imply that it endorses such website or webpage. You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content. Automattic disclaims any responsibility for any harm resulting from your use of non-WordPress websites and webpages.
  3. Copyright Infringement and DMCA Policy. As Automattic asks others to respect its intellectual property rights, it respects the intellectual property rights of others. If you believe that material located on or linked to by WordPress.com violates your copyright, you are encouraged to notify Automattic in accordance with Automattic’s Digital Millennium Copyright Act (“DMCA”) Policy (located at http://automattic.com/dmca). Automattic will respond to all such notices, including as required or appropriate by removing the infringing material or disabling all links to the infringing material.  Automattic will terminate a visitor’s access to and use of the Website if, under appropriate circumstances, the visitor is determined to be a repeat infringer of the copyrights or other intellectual property rights of Automattic or others. In the case of such termination, Automattic will have no obligation to provide a refund of any amounts previously paid to Automattic.
  4. Intellectual Property. This Agreement does not transfer from Automattic to you any Automattic or third party intellectual property, and all right, title and interest in and to such property will remain (as between the parties) solely with Automattic. Automattic, WordPress, WordPress.com, the WordPress.com logo, and all other trademarks, service marks, graphics and logos used in connection with WordPress.com, or the Website are trademarks or registered trademarks of Automattic or Automattic’s licensors. Other trademarks, service marks, graphics and logos used in connection with the Website may be the trademarks of other third parties. Your use of the Website grants you no right or license to reproduce or otherwise use any Automattic or third-party trademarks.
  5. Changes.  Automattic may in the future offer new services and/or features through the VIP Hosting Service (including, the release of new tools and resources). Such new features and/or services shall be subject to the terms and conditions of this Agreement.
  6. General Representation and Warranty.  You represent and warrant that (i) (a) if your site includes a privacy policy, such policy complies with all applicable laws and you will abide by the terms of such policy at all times while using the VIP Hosting Service, or (b) if your site does not include a privacy policy, your use of the VIP Hosting Service will be in strict accordance with the Automattic Privacy Policy, (ii) your use of the VIP Hosting Service will be in compliance with this Agreement and with all applicable laws and regulations (including without limitation any local laws or regulations in your country, state, city, or other governmental area, regarding online conduct and acceptable content, and including all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside) and (iii) your use of the VIP Hosting Service will not infringe or misappropriate the intellectual property rights of any third party.
  7. Indemnification. You agree to indemnify and hold harmless Automattic, its contractors, and its licensors, and their respective directors, officers, employees and agents from and against any and all claims and expenses, including attorneys’ fees, arising out of your use of the VIP Hosting Service, including but not limited to your violation of this Agreement.
  8. Miscellaneous. This Agreement, including the VIP Services Agreement, constitutes the entire agreement between Automattic and you concerning the subject matter hereof, and they may only be modified as set forth in the VIP Services Agreement.  In the event of any conflict between this Agreement and any applicable VIP Services Agreement, the VIP Services Agreement shall control.

_______

Change Log:

7.26.2012:  added the following to Section 10 of Terms & Conditions:  “Customer shall have the right to approve such press release prior to publication, which approval shall not unreasonably be withheld”

8.16.2012:  revised Section 2 of Exhibit C; removed “modify” and replaced with “excerpt, re-format”, removed “for any purpose in connection with Automattic’s products and services” and replaced with “for the purpose of promoting or disseminating the Content”.

11.12.2012:  deleted last two sentences of first boilerplate paragraph; revised definition of “Product” in Section 2; changed all references from “blogs” to “sites” in Exhibit C.

1.16.2013:  revised Section 6 of Exhibit C; added clauses (i)(a) and (b), relating to inclusion of and compliance with Customer’s privacy policy on a hosted site.

5.6.2013:  revised Section 4 to provide for monthly invoicing.

7.22.2013:  revised Section 4 to provide for advance notice of price changes and pre-approval of travel expenses.

8.6.2013:  revised Section 9 to clarify that amendments to change price are covered by Section 4; revised Section 2 of Exhibit C to provide for CC licenses.