Liferay WeDeploy Alpha Services Agreement
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE PURCHASING AND/OR USING WEDEPLOY. BY USING WEDEPLOY, END USER SIGNIFIES ITS ASSENT TO AND ACCEPTANCE OF THIS AGREEMENT AND ACKNOWLEDGES IT HAS READ AND UNDERSTANDS THIS AGREEMENT. AN INDIVIDUAL ACTING ON BEHALF OF AN ENTITY REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT ENTITY. IF END USER DOES NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN IT MUST NOT USE WEDEPLOY.
This Liferay WeDeploy Alpha Services Agreement, including all referenced appendices and documents located at URLs (the "Agreement"), is between Liferay, Inc. ("Liferay") with a principal place of business at 1400 Montefino Ave, Diamond Bar, CA 91765 and the user of WeDeploy ("WeDeploy") who accepts the terms of this Agreement ("You" or "End User"). The effective date of this Agreement is the earlier of the date that End User accepts this Agreement or the date that End User uses WeDeploy ("Effective Date").
"Account" means the individual account each End User must create and use to access WeDeploy.
"Acceptable Use Policy" means the WeDeploy Acceptable Use Policy set forth in Appendix A, attached to this Agreement.
"Affiliate" means in the case of a company, an entity that owns or controls, is owned or controlled by, or is under common control or ownership with a party, where ‘control’ is the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether though ownership of voting shares, by contract or otherwise.
"Application(s)" means the web application(s) that an End User creates and makes available through the use of WeDeploy.
"Alpha Term" means the period of time Liferay makes the "alpha" version of WeDeploy available to the general public.
"Content" means any content or data whether developed in connection with WeDeploy or otherwise, software code, documentation, materials, information, text files, images and/or trademarks associated with Your Account, Application or any other use of WeDeploy and not provided by Liferay.
"Liferay Software and/or Services" means the software and/or services made available through WeDeploy for End User to build an Application that is owned by, maintained by, or is a community project sponsored by Liferay.
"Service Level" means the resources allotted per each End User Account within the WeDeploy web service.
"Third Party Software and/or Services" means the software and/or services made available through WeDeploy for End User to build an Application that is not owned or maintained by Liferay.
An End User is required to create and maintain an Account to access and use Liferay WeDeploy to create Applications by providing a valid email address and creating a password. End Users may not create multiple Accounts to increase the Service Level provided for each End User. Each End User remains fully responsible for any activity through an End User’s Account.
Liferay grants End User a non-exclusive, non-assignable, worldwide right to access and use WeDeploy for the Alpha Term solely for the Customer's evaluation and testing of WeDeploy and subject to the terms herein. Each End User is responsible for determining the suitability of WeDeploy for each End User’s individual use, including with respect to any laws and/or regulations relating to data protection or privacy. After the Alpha Term, WeDeploy may be made available under a separate agreement for use other than solely for evaluation and subject to terms that vary from this Agreement. You understand that Lifeary is not obligated to provide You access to WeDeploy, your Application or your Content after expiration of the Alpha Term. You are responsible for backing up your Application, Content or other data. Liferay’s provision of the WeDeploy under this Agreement does not require Liferay to meet any service level agreements, promises, or uptimes. Liferay retains all right, title, and interest in WeDeploy.
Each End User is responsible for the Content made available through use of WeDeploy, including but not limited to the Content’s compliance with law, the Content’s compliance with the Acceptable Use Policy, the right to use such Content, and administering take down notices related to the Content. Liferay however reserves the right to suspend or terminate an End User’s use of or access to WeDeploy immediately and without liability to a End User if any Content breaks any applicable law, requires additional consent or permission a End User has not obtained, or does not comply with the Acceptable Use Policy. An End User may be required upon a reasonable request by Liferay to provide Content or other information as may be reasonably necessary to ensure a End User’s compliance with the Acceptable Use Policy. End Users are prohibited from using WeDeploy to store, create, or deploy Content that is regulated under the International Traffic in Arms Regulations (ITAR).
5. Third Party Software and Services
Certain Third Party Software and/or Services may be made available for use through WeDeploy for an End User to create its own Application(s). Each End User is fully responsible for the choice of any Third Party Software and/or Services within an End User’s Application. The availability of such Third Party Software and/or Services does not constitute and endorsement by Liferay. The terms and/or conditions that apply to an End User’s use of any Third Party Software and/or Services within a End User’s Application are as solely agreed upon between a End User and the Third Party Software and/or Services provider. If an End User chooses to use Third Party Software and/or Services within an End User’s Application, Liferay may be required to grant the Third Party Software and/or Services provider access to a End User’s Content or Account to the extent necessary to provide the Third Party Software and/or Services or for interoperability with the Third Party Software and/or Services. Third Party Services may be removed from or no longer available through WeDeploy at any time, for example but not limited to if a take down is required by law or due to inconsistent interoperability.
6. Provision of Services
You give Liferay, its Affiliates, subcontractors, and vendors a worldwide, royalty-free, non-exclusive license to (a) host the Content provided by You through Your use of WeDeploy, and (b) display the Content provided by You through Your use of WeDeploy accessible by other users. You represent and warrant that you own all rights in, or have received a valid license to use the Content, with rights or license sufficient to enable any activities in connection with WeDeploy. You must provide all required and appropriate warnings, information and disclosures as may be required due to the nature of the Content. You are solely responsible for backing up Content and otherwise using measures, as You deem necessary to ensure that Content is not lost.
There are currently no fees associated with an End Users use of WeDeploy during the Alpha Term. Use of WeDeploy may be subject to fees under a separate agreement upon conclusion of the Alpha Term.
8. Term and Termination
This Agreement will terminate upon expiration of the Alpha Term. Sections # will survive termination of this agreement.
You represent and warrant that (a) Your use of WeDeploy you will comply with all applicable laws and regulations; (b) You will comply with the Acceptable Use Policy when using WeDeploy; (c) You have the rights in the Content and Application to use such Content and Application with WeDeploy; (d) Your Content and Application do not infringe a third party’s intellectual property rights (e); You will take all reasonable security precautions when using WeDeploy; and (f) You will not reverse engineer or attempt to reverse engineer WeDeploy.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WEDEPLOY (INCLUDING ANY SOFTWARE) AS PROVIDED BY LIFERAY AND ITS AFFILIATES ARE PROVIDED AND LICENSED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF QUALITY, MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, AND SUCH IMPLIED WARRANTIES, AND ANY OTHER WARRANTIES, REPRESENTATIONS, CONDITIONS AND TERMS, EXPRESS OR IMPLIED (AND WHETHER IMPLIED BY STATUTE, COMMON LAW, COURSE OF DEALING, TRADE USAGE OR OTHERWISE) ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. LIFERAY AND ITS AFFILIATES DO NOT GUARANTEE THAT WEDEPLOY OR ANY SOFTWARE OR SERVICES PROVIDED UNDER THIS AGREEMENT HAVE BEEN DESIGNED TO MEET CUSTOMER’S SPECIFIC BUSINESS REQUIREMENTS, THE USE OF WEDEPLOY SERVICES OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, COMPLY WITH LEGAL OR REGULATORY REQUIREMENTS APPLICABLE TO CUSTOMER, OR THAT LIFERAY WILL CORRECT ALL ERRORS. END USER AGREES THAT IT IS SOLELY RESPONSIBLE FOR THE RESULTS OBTAINED FROM THE USE WEDEPLOY SERVICES AND SOFTWARE PROVIDED UNDER THIS AGREEMENT.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING DISCLAIMER, WEDEPLOY SERVICES AND ANY SOFTWARE PROVIDED UNDER THIS AGREEMENT ARE NOT SPECIFICALLY DESIGNED, MANUFACTURED OR INTENDED FOR USE IN (I) FACILITIES OR ENVIRONMENTS REQUIRING FAILSAFE PERFORMANCE, INCLUDING BUT NOT LIMITED TO (A) THE PLANNING, CONSTRUCTION, MAINTENANCE, CONTROL, OR DIRECT OPERATION OF NUCLEAR FACILITIES, (B) AIRCRAFT NAVIGATION, CONTROL OR COMMUNICATION SYSTEMS, WEAPONS SYSTEMS, (C) DIRECT LIFE SUPPORT SYSTEMS OR (II) ULTRA-HAZARDOUS OR STRICT LIABILITY ACTIVITIES AND THE CUSTOMER IS SOLELY RESPONSIBLE AND EXPRESSLY ASSUMES ALL RISK FOR ANY SUCH USE.
12. Limitation of Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL LIFERAY OR ITS AFFILIATES HAVE ANY LIABILITY TO END USER AND/OR ITS AFFILIATES, UNDER ANY LEGAL OR EQUITABLE THEORY, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), PRODUCT LIABILITY, STATUTE OR OTHERWISE, FOR OR IN CONNECTION WITH: (I) ANY ECONOMIC LOSSES, LOSS OF REVENUE, LOSS OF CUSTOMERS OR BUSINESS, LOSS OF OR DAMAGE TO REPUTATION OR GOODWILL, LOSS OF ANTICIPATED PROFITS, LOSS UNDER OR IN RELATION TO ANY OTHER CONTRACT, LOSS OF DATA OR INTERRUPTION OF SERVICES, LOSS OF ANTICIPATED SAVINGS OR BENEFITS, OR COVER OR ANALOGOUS COST RELATED TO THE PROCUREMENT OF REPLACEMENT SERVICES OR SOFTWARE; (II) ANY LOSSES, COSTS, EXPENSES OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY MALFUNCTIONS, REGULATORY NON-COMPLIANCE, DELAYS, PRODUCT LIABILITY, RELIANCE, BREACH OF ANY IMPLIED DUTY; OR (III) ANY LOSSES, COSTS, EXPENSES OR DAMAGES OTHER THAN DIRECT DAMAGES, INCLUDING WITHOUT LIMITATION, ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, LOSSES, COSTS OR EXPENSES. IN EACH CASE (I) THROUGH (III), WHETHER OR NOT FORESEEABLE; EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, COSTS OR EXPENSES.
FOR ALL EVENTS AND CIRCUMSTANCES AND TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE AGGREGATE AND CUMULATIVE LIABILITY OF LIFERAY AND ITS AFFILIATES TO THE OTHER PARTY AND/OR ITS AFFILIATES ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ON ACCOUNT OF PERFORMANCE OR NON-PERFORMANCE OF OBLIGATIONS, REGARDLESS OF THE FORM OF THE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STATUTE OR OTHERWISE WILL NOT EXCEED FIFTY UNITED STATES DOLLARS ($50).
If a third party makes a claim against Liferay or its Affiliates that Your Application, Content or other use of WeDeploy infringes any patent, copyright or trademark, or misappropriates any trade secret, then You shall indemnify and defend Liferay, its Affiliates, its directors, officers and employees against such a claim at Your expense and You shall pay all losses, damages and expenses (including reasonable attorneys' fees) finally awarded against such parties or agreed to in a written settlement agreement signed by Liferay and/or its Affiliates, to the extent arising from the claim.
14. Governing Law; Jurisdiction
The validity, interpretation and enforcement of this Agreement (and any dispute or claim relating to it, or its formation, existence, construction, performance or termination) will be governed by and construed in accordance with the laws of the United States and of the State of California without giving effect to the conflicts of laws provisions thereof or the United Nations Convention on Contracts for the International Sale of Goods. All disputes or claims arising out of or relating to this Agreement or its subject matter will be submitted to the exclusive jurisdiction of the state or federal courts of competent jurisdiction located in Los Angeles County, California and each party irrevocably consents to such personal jurisdiction and waives all objections to this venue. In the event the Uniform Computer Information Transactions Act (UCITA) or any similar federal or state laws or regulations are enacted, it will not apply to this Agreement, and the governing law will remain as if such law or regulation had not been enacted.
All notices to Liferay permitted or required under this Agreement shall be in English, in writing and shall be delivered in person, by certified or registered express mail, by other nationally recognized overnight delivery service, electronic mail, or facsimile. Notices shall be deemed received the day of personal delivery, or in relation to transmission by electronic mail, at the time at which the notice enters an information system which is under the control of the recipient or in relation to facsimile, on receipt by the sender of an acknowledgment or transmission report generated by the machine from which the facsimile was sent that the facsimile was successfully sent in its entirety or five (5) days after deposit in the mail or with a nationally recognized overnight delivery service. End Users shall direct all notices to Liferay under this Agreement to the following address: Liferay, Inc., Attn: Legal Department, 1400 Montefino Avenue, Diamond Bar, California 91765; E-mail: firstname.lastname@example.org; FAX: (866) 497-9792. All notices to End Users permitted or required under this Agreement shall be addressed to the e-mail address associated with an End Users Account and shall be deemed received immediately after being sent to the e-mail address provided to Liferay.
You may not assign this Agreement or any of its rights or obligations under this Agreement without the Liferay’s prior written consent. Liferay may assign this Agreement or any of its rights or obligations under this agreement (i) to any Affiliate, or (ii) in connection with any sale, transfer, or other disposition of all or substantially all of its business or assets.
17. Force Majeure
Neither party shall be liable to the other for failure or delay in the performance of a required obligation under this Agreement if such failure or delay is caused by acts of God, wars, riots, strikes, fire, terrorist acts, flood, explosion, failure or diminishment of power or of telecommunications or data networks or services, earthquake or other natural disaster, government regulation, or other similar cause beyond such party's reasonable control.
Headings to the sections of this Agreement are for convenience only and shall not have any effect on construction and interpretation of this Agreement. No provision shall be construed adversely to a party solely on the ground that the party was responsible for the preparation of this Agreement or that provision
19. Entire Agreement
This agreement contains all the terms agreed to by the parties relating to its subject matter. It replaces all previous discussions, understandings, and agreements.
If any part of this agreement is declared unenforceable or invalid, the remainder will continue to be valid and enforceable.
A party's failure or neglect to enforce any of rights under this agreement will not be deemed to be a waiver of that party's rights.
22. Waiver of Jury Trial
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT.
23. Agreement Updates
Liferay reserves the right to update this Agreement from time to time by posting an updated version no later than thirty (30) days prior to the posted effective date of such update. Your continued use and access of WeDeploy after the posted effective date signifies your acceptance to the updated Agreement.