WeDeploy Services Agreement
LAST UPDATED: October 3, 2017
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE PURCHASING AND/OR USING LIFERAY SERVICES OR SOFTWARE. BY USING LIFERAY SERVICES OR SOFTWARE, CUSTOMER 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 CUSTOMER DOES NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN CUSTOMER MUST NOT USE LIFERAY SERVICES AND SOFTWARE.
This Liferay WeDeploy 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 purchaser or user of Liferay Services who accepts the terms of this Agreement ("Customer"). This Agreement establishes a framework that will enable Customer to receive certain Services (as defined below) from Liferay. The effective date of this Agreement is the earlier of the date that Customer accepts this Agreement or the date that Customer uses the Services ("Effective Date").
"Account" means the individual account each Customer must create and use to access the Services.
"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 through ownership of voting shares, by contract or otherwise.
“Fee(s)” means the fees that Customer pays for the Services as further described in Section 11 (Fees).
"Confidential Information" means all information disclosed by either Liferay or Customer ("Disclosing Party") to the other party ("Recipient") during the term of this Agreement that is either (i) marked confidential or with a similar marking or (ii) disclosed orally and described as confidential at the time of disclosure and subsequently set forth in writing, marked confidential, and sent to the Recipient within thirty (30) days following the oral disclosure. Notwithstanding the foregoing, information disclosed by either party concerning technical or product information of any nature, information relating to the provision of Services, trade secrets, software code, proposals, financial and pricing information and rates, product and marketing plans, marketing opportunities and customer lists is hereby deemed to be Confidential Information regardless of whether or not it is so identified. If the Recipient incorporates Confidential Information it has received into its own notes or other data, then those items are also considered Confidential Information. Confidential Information shall not include information which: (1) is or later becomes publicly available other than by the Recipient disclosing it in violation of this Agreement or is disclosed by the Disclosing Party without any obligation of confidentiality; (2) is or becomes available to the Recipient from a source other than the Disclosing Party without the requirement that it be treated as confidential, provided that such source was not known by the Recipient to be bound by an obligation of confidentiality with respect to such information; (3) is independently developed by the Recipient without use of the Confidential Information; (4) is in the rightful possession of the Recipient at the time of disclosure by the Disclosing Party without an obligation of confidentiality; or (5) is generally known, useless or easily developed by someone with ordinary skills in the business of the Recipient; (6) is disclosed by the Recipient with the Disclosing Party’s prior written approval; (7) is licensed under an Open Source License (as defined by the Open Source Initiative (www.opensource.org)); or, (8) the parties agree in writing should not be treated confidentially or may be disclosed.
"Content" means any content or data whether developed in connection with the Services or otherwise, software code, documentation, materials, information, text files, images and/or trademarks associated with Customer’s Account, Project or any other use of Services and not provided by Liferay.
“Customer’s User” means a third party using Customer’s Account or the Services or Software provided through Customer’s Account.
"Personally Identifiable Information" means: (i) a combination of any information that identifies an individual with that individual's sensitive and non-public financial, health or other data or attribute, such as a combination of the individual's name, address, or phone number with the individual's social security number or other government issued number, financial account number, date of birth, address, biometric data, mother's maiden name, or other personally identifiable information; (ii) any "non-public personal information" as that term is defined in the Gramm-Leach-Bliley Act found at 15 USC Subchapter 1, § 6809(4), and (iii) "protected health information" as defined in the Health Insurance Portability and Accountability Act ("HIPAA") found at 45 CFR §160.103. Liferay is not acting as a "Business Associate" as that term is defined in HIPAA.
"Services" means the various services that Liferay makes available through WeDeploy for Customer. Services do not include Third Party Software and Services.
"Project(s)" means the network based application(s) that a Customer creates and makes available through the use of the Services.
"Software" means any downloadable software tools, development kits or similar software provided by Liferay in connection with the Services, which may be downloaded by Customer, and any updates Liferay may make to such Software from time to time.
"Third Party Software and/or Services" means the third party software and/or services that may be made available to Customer by Liferay or third parties through or in connection with the Services, the Liferay Marketplace or otherwise in connection with Customer’s use of the Services.
“Unit” means a measurement of usage upon which Fees are paid or Service capacity is limited (including but not limited to memory, storage, real-time data, etc.) as set forth at www.wedeploy.com.
A Customer is required to create and maintain an Account to access and use the Services. The Customer must provide a valid email address consistent with the Acceptable Use Policy and create a password and verify that the email address will remain valid during the term of this Agreement. Customers may not (or allow third parties to) create multiple Accounts or otherwise access the Services in a manner that is intended to avoid Fees or to circumvent maximum capacity thresholds for the Services or otherwise increase the Service scope or level provided for each Customer. Customer remains fully responsible for any activity through a Customer’s Account.
3. Ownership and Use Rights
3.1 Services. Subject to Customer’s compliance with this Agreement and during the applicabe Services term, Liferay grants Customer a non-exclusive, non-assignable, worldwide right to (i) access and use the Services and (ii) integrate the Services into any Project that has material value independent of the Services. Customers only acquire the right to use the Services and do not acquire any rights of ownership in the Services. Customer agrees that Liferay and its licensors own all legal rights and interests, including intellectual property rights, in the Services. Customers may use any documented APIs disclosed in the documentation for the Services solely for the purpose of integrating Content with the Services and for no other purpose; Customer may not use any such APIs to create products or services that compete with any of the Services, including the Software. Customer shall not (i) sublicense, sell, rent, distribute, assign or otherwise transfer the Services; (ii) reverse engineer, decompile or disassemble the Services except to the extent such conduct is permitted under applicable law notwithstanding this restriction; (iii) remove or modify any of the copyright, trademark or other proprietary notices contained in the Services; (iv) modify or create derivative works of the Services, (v) copy the Services, other than as may otherwise be permitted pursuant to an applicable Software license or (vi) use the Services to create products or services that compete with any of the Services. This Section establishes the rights and obligations associated with the Services and nothing in this Agreement is intended to limit Customer’s rights associated with individual software components licensed to Customer under the terms of an open source license or by a third party under an applicable third party license. Liferay reserves all rights to the Services not expressly granted herein. The licenses granted to Customer by Liferay are conditioned on Customer’s continued compliance with the terms of this Agreement, and will immediately and automatically terminate if Customer does not comply with any term or condition of this Agreement. The Services may be used under the terms of this Agreement by third parties acting on Customer’s behalf, such as contractors, subcontractors or outsourcing vendors, provided that Customer remains responsible for all of Customer’s obligations under the Agreement and for the activities and omissions of the third parties..
3.2 Software. As part of the Services, Customer may receive access to certain Software to facilitate uploading and managing Content. The licensing terms applicable to the Software are located in or provided with the Software Customer receives and Customer agrees to such terms.
3.3 Trademarks. The Liferay and third party trademarks, logos, trade names and service marks ("Marks") displayed as part of the Services(s) are the property of Liferay or other third parties. Customer is not permitted to use these Marks without the prior written consent of Liferay or the third party trademark owner. This Agreement does not constitute such consent. Please consult with and abide by the applicable trademark guidelines of the respective trade mark owner. The Liferay Trademark Guidelines and Policies which govern any permitted use of Liferay Marks can be found at www.liferay.com/trademark.
4. Third Party Software and Services
Certain Third Party Software and/or Services may be made available for use on or in connection with the WeDeploy platform, Liferay marketplace or otherwise in connection with Customer’ s use of the Services. Each Customer is fully responsible for the choice of any Third Party Software and/or Services within an Customer Project. The availability of such Third Party Software and/or Services does not constitute any endorsement by Liferay nor implies that the Third Party Software will interoperate with any Liferay Software and Services regardless of whether an item of Third Party Software and/or Services is designated as Liferay “certified” or similar. Liferay does not provide any warranty, does not necessarily support and has not necessarily confirmed the validity, functionality or screened the content of such Third Party Software and Services and any use is at Customer’s own risk. The terms and/or conditions that apply to Customer’s use of any Third Party Software and/or Services within a Customer’s Project are as solely agreed upon between Customer and the Third Party Software and/or Services provider and do not apply to Liferay. Liferay and its licensors and vendors have no obligations and/or liability with respect to such third party or the Third Party Software and Services. If a Customer chooses to use Third Party Software and/or Services within a Customer Project, Customer authorizes Liferay to grant the Third Party Software and/or Services provider access to Customer’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 be made no longer available through WeDeploy at any time, for example but not limited to if a take down is required by law or court order or due to inconsistent interoperability.
5.1 Liferay’s rights in the Content. In order to make the Services available to Customer, Customer gives Liferay, its Affiliates, subcontractors, and any third party service provider on whose services Liferay may depend to provide the Services a worldwide, royalty-free, perpetual, non-exclusive license to make, use, reproduce, prepare derivative works from, distribute, import, perform and display Content for the purpose of providing the Services to Customer. Liferay does not expect to access Customer’s Content or provide it to third parties except (a) as required by applicable law or regulation (such as responding to an audit, agency action, a subpoena or warrant) (b) as may be necessary to deliver, enhance or support the Services provided to Customer, (c) to prevent, detect or address fraud, security or technology issues, (d) to investigate potential breaches of Customer’s agreements with Liferay or to establish Liferay's legal rights or defend against legal claims, (e) to protect against harm to the property, rights, or safety of Liferay, its users or the public. Liferay may collect and use for any purpose aggregate anonymous data about Customer’s use of the Services. Except as set forth in this section, Liferay obtains no rights in Content under this Agreement. Customer must provide all required and appropriate warnings, information and disclosures as may be required due to the nature of the Content.
5.2 Customer Responsibilities. Customer is responsible for the Content used with or made available through Customer’s use of the Services, 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 and Customer will remove immediately any Content that does not meet these compliance requirements. Liferay however reserves the right to suspend or terminate Customer’s use of or access to the Services immediately and without liability to a Customer if any Content breaks any applicable law, requires additional consent or permission a Customer has not obtained, or does not comply with the Acceptable Use Policy. A Customer may be required upon a reasonable request by Liferay to provide Content or other information as may be reasonably necessary to ensure Customer’s compliance with the Acceptable Use Policy. Customers are prohibited from using the Services to store, create, or deploy Content that is regulated under the International Traffic in Arms Regulations (ITAR). Customer will immediately respond to any notice that the Customer receives claiming that Content violates a third party's rights, including notices under the Digital Millennium Copyright Act, and take corrective action, which may include but is not limited to promptly removing any such Content. Customer will maintain a policy to respond to any and all such requests that Customer may receive regarding Customer’s Users' Content. Customer is solely responsible for backing up Content and otherwise using measures, as Customer deems necessary to ensure that Content is not lost. Customer may lose any of the Content for which Customer does not maintain a copy outside of the Services. Liferay and/or any of its vendors are not responsible to Customer, Customer’s Users or any third party, if Content is lost or deleted.
6. Third Party Use.
If Customer provides Customer’s Users with access to the Services and/or Content, Customer is responsible for any third party that Customer enables or authorizes to have access to the Services and Customer will be deemed to have taken any action that Customer assists, facilitates or permits Customer’s Users in taking relating to this Agreement, Content or use of Customer’s Account or the Services. Customer must ensure that Customer’s Users comply with the terms of this Agreement, including the Acceptable Use Policy, and Customer agrees that if Customer becomes aware of any violation by one of Customer’s Users, Customer will terminate that Customer’s User's access immediately. Customer will also implement an acceptable use policy that is consistent with the Liferay Acceptable Use Policy.
Customer will immediately notify Liferay if Customer suspects someone has breached this Agreement, the Acceptable Use Policy, or has obtained unauthorized access to Customer’s Account, the Content and/or the Services. If Liferay has reason to believe that Customer or Customer’s Users have breached this Agreement or the Acceptable Use Policy, Liferay or its designated agent may inspect Customer’s use of the Services, including Customer’s Account, Content and records, to verify Customer’s compliance with this Agreement. Customer will not interfere with Liferay’s monitoring activities and will provide Content or other information regarding Customer’s Account and/or Content as may be reasonably requested by Liferay to ensure that Customer’s use of the Services complies with this Agreement. Liferay reserves the right (but has no obligation) to suspend or terminate Customer’s access to the Services or disable Customer’s Account or remove Customer’s or Customer’s Users' Content if Liferay, in its sole discretion, believes Customer or Customer’s User has breached the terms of the Agreement, any policy referred in this Agreement or has violated any applicable law. Liferay shall have no liability with respect to such suspension or termination and Customer will continue to incur applicable Fees for the Services during any suspension.
9. Technical Support, Service Levels, Back Up
9.1 Technical Support. The Services are provided for Customer’s use and evaluation without any technical support and may include beta or developer preview services. Customer may be able to submit questions or report bugs, but Customer should have no expectation that questions will be answered or that problems will be resolved. Liferay may offer certain technical support to Customer for an additional fee ("Support") as set forth at www.wedeploy.com. Customer is responsible for providing all technical support to Customer’s Users, unless Customer’s User has a separate agreement with Liferay under which Liferay has agreed to provide technical support to them for this Service.
9.2 Service Levels, Back Up. The Services are generally provided through internet connectivity and third party vendors that Liferay does not control and may be subject to delays, outages or other problems; Liferay is not responsible for any such delays or outages. More broadly, Liferay makes no service level-related representations, warranties, or covenants regarding Service uptime, connectivity, hosting conditions, load balancing, security, monitoring, backup, archiving, recovery, release management, change control, maintenance, availability, and the like, and will offer no Services credits for service levels Customer deems inadequate. Customer is responsible for backing up Customer’s Project, Content or other data.
10. Changes to the Services and Service Levels
Liferay intends to periodically update, improve and/or discontinue certain functionality associated with the Services and Customer’s user experience. As a result, the Services may be substantially modified. Liferay reserves the right at any time to change and/or discontinue any or all of the Services (including the underlying platforms and application programming interfaces ("APIs") and/or application binary interfaces ("ABIs") which may inhibit Customer’s ability to use existing applications. Liferay will use reasonable efforts to provide notice of material changes to the Services on the applicable Services website.
11.1 Fees, Units. Certain Services may be offered at no charge. For Services offered for a fee Customer agrees to pay Liferay (or a Business Partner see Section 11.6 below) any applicable Fees to receive the Services and for all usage by Customer or Customer’s Users. The Fees will be based on and Customer’s use of the Services will be limited to a certain amount of Units. For details on the various Service offerings please refer to www.wedeploy.com. From time to time, Liferay may offer Customer certain promotional pricing or promotional services, including but not limited to developer previews or betas (“Promotional Services”), during a specific term ("Promotional Period"). Customer’s use of the Promotional Services during any such Promotional Period will be limited to the term of the Promotional Period and subject to the terms and conditions of this Agreement as well as any additional terms and conditions that Liferay may provide in connection with the Promotional Period such as usage limitations, quotas, term limits and limited or no support. If Customer requires Services in excess of any Unit thresholds associated with the Service that the Customer has purchased, Customer must purchase the appropriate Services and pay any associated Fees to cover the utilized Units from the date Customer first utilized such Units. All Fees are nonrefundable.
11.2 Credit Card Processing. For any Services purchased through the WeDeploy portal, Customer must first provide Liferay and/or its third party payment processor with a valid and authorized credit or debit card number and associated charge information prior to receiving Services and Customer (i) authorizes Liferay or its third party payment processor to charge Customer’s credit card for any Fees, and for the amount due at the time of renewal of the Services, and (ii) if needed, agrees to provide updated credit card information to Liferay and/or its third party payment processor for subsequent Fees due. In order to provide the Services, Liferay may be required to share Customer’s information, including credit/debit card and other financial information, with third parties solely for the purpose of processing payment and/or providing the Services.
11.3 Order Form. If Customer is purchasing the Services from Liferay other than through the WeDeploy portal, the following terms will apply. Fees will be identified in an ordering document ("Order Form") and are (a) due upon Liferay's acceptance of an Order Form or, for renewal of Services, at the start of the renewal term, and (b) payable in accordance with this section. If credit terms are provided to Customer, Liferay will invoice Customer for the Fees upon Liferay's acceptance of the applicable Order Form and upon acceptance of any future order. Unless otherwise specified in an Order Form and subject to Liferay's approval of credit terms, Customer will pay Fees, no later than thirty (30) days from the date of each invoice. Liferay reserves the right to suspend or cancel performance of all or part of the Services and/or change its credit terms if actual payment has not been received within thirty (30) days of the invoice date. Customer may be charged interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on all late payments.
11.4 Taxes, Transaction Fees. All Fees are exclusive of Taxes and Transaction Fees. Customer will pay Liferay an amount equal to any Taxes and Transaction Fees arising from or relating to this Agreement which are paid by or are payable by Liferay. "Taxes" means any form of sales, use, value added or other form of taxation and any fines, penalties, surcharges or interest, but excluding any taxes based solely on the net income of Liferay. “Transaction Fees” means currency conversion fees, wire transfer fees or other bank payment charges. If Customer is required to pay, withhold or deduct any portion of the payments due to Liferay, Customer will increase the sum payable to Liferay by the amount necessary so that Liferay receives an amount equal to the sum it would have received had Customer made no withholdings or deductions and to offset any Transaction Fees, so that Liferay ultimately receives an amount equal to the full amount of Fees as invoiced.
11.5 Future Availability. Customer acknowledges that Customer’s purchase of the Services is not contingent on the future availability of any new features or functionality. From time to time Liferay may in its sole discretion increase or decrease the levels of the Services and modify any Fees, provided that such change or modification will only become effective upon the first renewal following thirty (30) days prior notice to Customer.
11.6 Business Partners. When Customer orders Services through a Business Partner, Liferay confirms that Liferay is responsible for providing the Services to Customer under the terms of this Agreement. However, Liferay is not responsible and shall not be liable for (i) the actions or omissions of Business Partners, (ii) any additional obligations not set out in this Agreement and which the Business Partners may have agreed to provide to the Customer, and/or (iii) any products or services that Business Partners supply to Customer under any separate agreements between a Business Partner and Customer. If Customer is purchasing Services from a Business Partner the terms included in Sections 11.2 and 11.3 above do not apply. “Business Partner” means an organization authorized by Liferay, directly or indirectly, to promote, market, sell, resell, distribute and support Services. Business Partners may for example include (without limitation) distributors, resellers or original equipment manufacturers (OEMs). For the avoidance of doubt, “Business Partner” does not mean subcontractors with whom Liferay has entered into an agreement to perform one or more of the Services offered under this Agreement.
12. Term and Termination
12.1 Agreement Term. The Agreement will commence on the Effective Date and continue in effect until terminated as set forth below.
12.2 Term of Services. The Services shall continue to renew for additional terms for so long as Customer is current in Customer’s payment of all applicable Fees and not in breach of this Agreement, unless Customer provides notice of non-renewal at least five (5) business days prior to the end of the then current term. Subscriptions will renew at the same price for the applicable Subscription term.
12.3 Termination of the Services. Customer may stop using the Services or may terminate Customer’s Account at any time, subject to the terms below. Liferay may discontinue Promotional Services at any time upon notice to Customer. All Fees are non-refundable even if Customer terminates the Services prior to the end of the month and Customer will be responsible for any Fees incurred prior to termination. Liferay may, at its discretion terminate Customer’s Account and remove Customer’s Content if Customer’s Account has been inactive for more than fifteen (15) days.
12.4 Termination of the Agreement. Liferay may terminate the Agreement in its sole discretion on thirty (30) days prior notice; provided that if Customer has pre-paid for Services beyond such thirty (30) day period, Liferay may provide Customer either, at its sole discretion, a pro rata refund of pre-paid Fees or the ability to continue to use the Services for such pre-paid period. Either Party may terminate the Agreement for material breach by the other Party of this Agreement, if the breach is not remedied within twenty (20) days of receiving notice of such breach. Without limiting other rights that Liferay may have, Liferay may suspend or terminate Customer’s Services, and Customer’s Account or disable Customer’s or Customer’s User's Content immediately if Liferay reasonably believes Customer or Customer’s Users have breached this Agreement, the Acceptable Use Policy or applicable law.
12.5 Effect of Termination. Upon termination of the Agreement, Customer will be required to pay any outstanding Fees that are due, all rights under this Agreement will cease and Customer may no longer use the Services. If Customer terminates the Services, Customer is responsible for: (i) removing any Content from Customer’s Account and (ii) following any additional steps provided to Customer in connection with the termination. Customer will continue to incur Fees until Customer successfully completes the actions described above. Following termination of Customer’s Account, Customer will no longer have access to the Services, or any Content stored in connection with the Services. Customer is responsible for ensuring that Customer has additional copies of any Content. The following sections of this Agreement will survive such termination or expiration: Sections 3, 4, 5.1, 12-20 and any provision that according to its explicit terms shall survive termination.
13. Representations and Warranties
13.1 Customer represents and warrant that (i) Customer’s use of the Services Customer will comply with all applicable laws and regulations; (ii) Customer will comply with the Acceptable Use Policy when using the Services; (iii) Customer has the rights in the Content and Project to use such Content and Project with WeDeploy; (iv) Customer’s Content and Project do not infringe a third party’s intellectual property rights (v); Customer will take all reasonable security precautions when using the Services and assure proper backups of its Content; and (vi) Customer will not reverse engineer or attempt to reverse engineer the Services or any Software provided as part of the Services.
13.2 Disclaimer of Warranty. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND SOFTWARE OF LIFERAY, ITS AFFILIATES AND THEIR LICENSORS AND VENDORS AND ANY THIRD PARTY SERVICES AND SOFTWARE ARE PROVIDED "AS IS", "AS AVAILABLE" AND WITHOUT WARRANTIES OR CONDITIONS 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, ITS AFFILIATES, LICENSORS OR VENDORS DO NOT GUARANTEE THAT THE SERVICES, ANY SOFTWARE OR THIRD PARTY SERVICES OR SOFTWARE PROVIDED UNDER THIS AGREEMENT HAVE BEEN DESIGNED TO MEET CUSTOMER’S SPECIFIC BUSINESS REQUIREMENTS, THE USE OF SERVICES, SOFTWARE OR THIRD PARTY SERVICES AND SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, COMPLY WITH LEGAL OR REGULATORY REQUIREMENTS APPLICABLE TO CUSTOMER, OR THAT LIFERAY WILL CORRECT ALL ERRORS.
CUSTOMER AGREES THAT IT IS SOLELY RESPONSIBLE FOR DETERMINING THE SUITABILITY OF THE SERVICES, SOFTWARE AND THIRD PARTY SERVICES AND SOFTWARE FOR EACH CUSTOMER’S INDIVIDUAL USE, INCLUDING WITH RESPECT TO ANY APPLICABLE LAWS AND/OR REGULATIONS WHICH MAY INCLUDE LAWS AND REGULATIONS RELATING TO DATA PROTECTION OR PRIVACY. LIFERAY MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE SUITABILITY OF THE SERVICES, SOFTWARE, THIRD PARTY SERVICES AND SOFTWARE FOR USE BY CUSTOMERS, OR THE SERVICES’, SOFTWARE’S, THIRD PARTY SERVICES’ OR SOFTWARE’S COMPLIANCE WITH THE REQUIREMENTS OF ANY APPLICABLE LAWS, REGULATIONS OR INDUSTRY STANDARDS. CUSTOMER AGREES THAT IT IS SOLELY RESPONSIBLE FOR THE RESULTS OBTAINED FROM THE USE OF THE SERVICES, SOFTWARE, THIRD PARTY SERVICES AND SOFTWARE PROVIDED UNDER THIS AGREEMENT.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING DISCLAIMER, THE SERVICES, ANY SOFTWARE AND THIRD PARTY SERVICES OR 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.
14. Exclusion and Limitation of Liability, Risk Allocation
14.1 Exclusion 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, ITS AFFILIATES OR THEIR RESPECTIVE LICENSORS OR VENDORS HAVE ANY LIABILITY TO CUSTOMER 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.
FURTHER, NEITHER LIFERAY, ITS AFFILIATES NOR THEIR LICENSORS OR VENDORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH: (1) CUSTOMER’S INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF (A) ANY TERMINATION OR SUSPENSION OF THIS AGREEMENT OR CUSTOMER’S USE OF OR ACCESS TO THE SERVICES, (B) LIFERAY’S DISCONTINUATION OF ANY OR ALL OF THE SERVICES OR (C) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (3) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR CUSTOMER’S USE OF OR ACCESS TO THE SERVICES; OR (4) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF CUSTOMER’S CONTENT OR OTHER DATA.
14.2 Limitation of Liability. FOR ALL EVENTS AND CIRCUMSTANCES AND TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE AGGREGATE AND CUMULATIVE LIABILITY OF LIFERAY ITS AFFILIATES' AND THEIR LICENSORS AND VENDORS TO THE CUSTOMER 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 , THE GREATER OF (I) ONE HUNDRED AND FIFTY UNITED STATES DOLLARS ($150.00) OR (II) THE FEES RECEIVED BY LIFERAY DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY, WITH RESPECT TO THE PARTICULAR SERVICES GIVING RISE TO LIABILITY UNDER THIS AGREEMENT, PROVIDED THAT, IF CUSTOMER HAS PREPAID ANY FEES FOR SERVICES FOR TERMS LONGER THAN TWELVE (12) MONTHS, THE APPLICABLE LIABILITY AMOUNT SHALL BE THE ANNUALIZED PRO RATED AMOUNT RECEIVED BY LIFERAY FOR THE RELEVANT TWELVE-MONTH PERIOD.
14.3 Allocations of Risk. SECTIONS 13 AND 14 ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THIS AGREEMENT. THIS ALLOCATION IS AN INTRINSIC PART OF, AND THE BASIS OF, THE BARGAIN BETWEEN THE PARTIES AND WITHOUT SUCH ALLOCATION, LIFERAY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT. LIFERAY’S PRICES FOR SERVICES REFLECT THIS ALLOCATION OF RISKS AND THE WARRANTIES, DISCLAIMER OF WARRANTIES, EXCLUSIONS AND LIMITATION OF LIABILITY SPECIFIED HEREIN. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS CONTAINED IN SECTIONS 13 AND 14 APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY (INCLUDING ANY LIMITED OR EXCLUSIVE REMEDY) PROVIDED FOR IN THIS AGREEMENT FAILS IN ITS ESSENTIAL PURPOSE.
Customer agrees to indemnify and hold harmless Liferay, its Affiliates and their licensors and vendors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys' fees and associated litigation expenses) arising out of or relating to: (a) Customer’s use and/or Customer’s Users' use of the Services; (b) Customer’s breach of this Agreement or the Acceptable Use Policy, or violation of applicable law by Customer and/or Customer’s Users; (c) Content or the combination of Content with other applications, content or processes, (d) any claim or allegation that Content infringes or misappropriates the intellectual property rights of any third party; (e) Liferay’s response to any third party subpoena, warrant, audit, agency action or other legal order or process concerning Content, Customer’s Account and/or use by Customer and/or Customer’s Users of the Services or (f) any dispute between Customer and a Third Party Software or Service provider or Customer and Customer’s User. Liferay will provide Customer with written notice of any claim, suit or action, but its failure to do so does not relieve Customer of its obligations under this section.
16.1 Confidentiality Obligations. Liferay and Customer agree that during the term of this Agreement, as a condition to the receipt of Confidential Information hereunder, Recipient shall: (i) except as expressly permitted by this Agreement not disclose, directly or indirectly, to any third party any portion of the Confidential Information without the prior written consent of the Disclosing Party; (ii) not use or exploit the Confidential Information except for the provision of Services; (iii) upon the Disclosing Party’s written request promptly return or destroy, at Recipient’s option, all materials and documentation regarding the Confidential Information received hereunder save for (a) Confidential Information stored in routine back-up media not accessible during the ordinary course of business and (b) archival copies of the Confidential Information that the Recipient needs to maintain in order to comply with statutory or regulatory requirements, unless otherwise prohibited by law, provided that in both cases (a) and (b) the Confidential Information shall remain subject to this Agreement; and (iv) exercise at least the same degree of care in safeguarding the Confidential Information as Recipient would with its own confidential information, provided that at a minimum, the Recipient must use reasonable care to protect the information. Both parties agree that obligations of confidentiality will exist for a period of two (2) years following initial disclosure of the particular Confidential Information unless terminated earlier pursuant to this Section 16 or in writing by the Disclosing Party; provided that, to the extent the Confidential Information is subject to longer confidentiality terms under mandatory applicable law (e.g., trade secrets), the Recipient will protect such Confidential Information as required by such law.
16.2 Permitted Disclosures. The parties may disclose Confidential Information only to those employees, Affiliates, agents, representatives and contractors who have a "need to know" such information in order to undertake their work with respect to this Agreement or otherwise to the benefit of the parties and to its auditors and legal counsel, in each case, who are under a written obligation or otherwise obligated by law to keep such information confidential using standards of confidentiality not less restrictive than those required by this Agreement. Recipient may disclose Confidential Information, if it is required to do so by applicable law, court order, or regulation, any governmental or other regulatory authority. Before disclosing such information, Recipient will notify Disclosing Party of the disclosure requirement (if it can provide notice without breaching any legal or regulatory requirement or court order) and cooperate with Disclosing Party (at the Disclosing Party’s expense) to obtain a protective order or other similar protection. If Recipient is required by law, statute, regulation or court order to make such a disclosure Recipient shall furnish only the portion of the Confidential Information that Recipient, in the opinion of its legal counsel, is legally required to disclose and shall exercise reasonable efforts to preserve for the remainder the confidentiality of the Disclosing Party’s Confidential Information.
16.3 Equitable Relief. Each party acknowledges and agrees that due to the unique nature of Confidential Information, any breach of the obligations of this Section 16 may cause the non-breaching party irreparable harm for which an adequate remedy at law may not be available and that, therefore, the non-breaching party will be entitled to seek appropriate equitable remedies including temporary restraining order(s) or preliminary or permanent injunction relief from a court of competent jurisdiction to stop or prevent any breach of this Section 16, in addition to all other remedies available at law.
17. Publicity and Benchmarking.
Customer may not misrepresent Customer’s relationship with Liferay nor suggest or publish that Liferay or any of its affiliates or licensors endorses, sponsors, contributes to or provides support for Content. Customer may not publish the results of any benchmarking studies that Customer conduct in connection with the Services or publish any press releases regarding Customer’s use of the Services unless Customer obtains Liferay's prior written approval.
18.1 Consent. Customer acknowledges and agrees that to provide the Services it may be necessary for Content or other information to be transferred between Liferay, its Affiliates, vendors and/or subcontractors, which may be located worldwide. Customer agrees that Liferay, its Affiliates and/or subcontractors are acting as data processors on Customer’s behalf, and Customer appoints Liferay to process Customer’s Content in order to provide the Services to Customer. Customer will obtain any necessary consent from Customer’s Users whose Personally Identifiable Information (defined below) or other Content Customer will be hosting in Services.
18.3 Legal Process. Liferay may provide information, including Content and information concerning Customer’s Account, as required by law (such as responding to a subpoena, warrant, audit, or agency action, or to prevent fraud) or to establish or exercise its legal rights or to defend against legal claims. Liferay shall not be liable for any use or disclosure of such information to such third parties.
19. 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.
20.1 Notices. 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. Customers 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 Customers permitted or required under this Agreement shall be addressed to the e-mail address associated with a Customers Account. It is Customer’s responsibility to keep its email address current and to update Customer’s profile with Liferay if it changes.
20.2 Assignment. Neither party may assign this Agreement or any of its rights or obligations under this Agreement without the other party’s prior written consent; provided, however, that 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 to which this Agreement relates.
20.3 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.
20.4 Continuing Business. Nothing in this Agreement will preclude or limit Liferay from providing software, materials or services for itself or other clients, irrespective of the possible similarity of such software, materials or services to those that might be delivered to Customer.
20.5 Headings. 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.
20.6 Severability. If any provision of this Agreement is held invalid or unenforceable for any reason but would be valid and enforceable if appropriately modified, then such provision will apply with the modification necessary to make it valid and enforceable. If such provision cannot be so modified, the parties agree that such invalidity will not affect the validity of the remaining provisions of this Agreement, unless explicitly provided otherwise in this Agreement.
20.7 Waiver. The delay or failure of either party to exercise any rights under this Agreement will not constitute or be deemed a waiver or forfeiture of such rights. No waiver will be valid unless in writing and signed by an authorized representative of the party against whom such waiver is sought to be enforced.
20.8 Changes and Updates. Liferay may modify this Agreement (including the Acceptable Use Policy) at any time by posting an updated version no later than thirty (30) days prior to the posted effective date of such update https://wedeploy.com/terms or by otherwise notifying Customer in accordance with Section 20.1 above. The modified terms will become effective if posted upon the posted effective date or otherwise thirty (30) days after receipt of the notice in accordance with Section 20.1. By continuing to use the Services after the effective date of any modifications to this Agreement, Customer agrees to be bound by the modified terms. It is Customer’s responsibility to review this Agreement and the Acceptable Use Policy to be aware of the most recent terms. Liferay last modified this Agreement on the date listed at the top of this Agreement.
20.9 Entire Agreement. This Agreement, including any policy referenced herein, represents the final, complete and exclusive statement of the agreement between the parties with respect to its subject matter, notwithstanding any prior written agreements or prior and contemporaneous oral agreements with respect to the subject matter of this Agreement
20.10 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.
Appendix A: WeDeploy Acceptable Use Policy
Liferay is providing you with access to certain Liferay services (which may include software, networking, and other computing resources) (collectively, “WeDeploy”) with the expectation that you consume these Services lawfully and in conformance with their intended use (as generally described on the relevant Liferay website associated with the particular Liferay Service). In connection with your use of WeDeploy you and/or your users may provide or use “Content” (as defined in the WeDeploy Services Agreement). Your use of WeDeploy, including Content, are subject to the terms of your WeDeploy Services Agreement with Liferay and the additional restrictions set forth in this Acceptable Use Policy. Please read Section 7 (Updates) below regarding Liferay’s right to update this Policy. If you violate this Acceptable Use Policy, we may suspend or terminate your access to WeDeploy. This Policy sets forth certain examples of prohibited conduct and Content in order to assist you in your use. But please note, that these lists are not exhaustive and you should follow the overriding principles contained in each section.
Customer’s use of WeDeploy is subject to all applicable laws and regulations, and Customer agrees not to violate such laws and/or regulations. In addition, Customer agrees not to insert, upload, contribute, share, post, distribute, transmit or otherwise promote or facilitate Content that, including but not limited to: (i) is illegal; (ii) promotes, encourages or solicits use of illegal activities or substances; (iii) is malicious or contains technology that may damage, interfere with, or intercept any system, program or data, including viruses, worms, trojan horses, time bombs or other harmful or disruptive components (iv) is threatening, abusive, harassing, defamatory, slanderous, libelous, derogatory, or violent; (v) is vulgar, obscene, bigoted, hateful, or that advocates racial or ethnic intolerance; (vi) is profane, scandalous, pornographic, indecent, or otherwise objectionable; (vii) violates, misappropriates or infringes the third party intellectual property rights of others; (viii) is invasive of a third party’s legal rights, including privacy or publicity rights.
Liferay provides access to WeDeploy for use and purposes in conformance with applicable documentation and/or as otherwise generally described by Liferay and not for interfering with other users’ enjoyment of WeDeploy or to harass other users or third parties. You are prohibited from conduct, including but not limited to: (i) using WeDeploy for any act or action that gives rise to civil or criminal liability for Liferay or for yourself or otherwise violates any applicable law or regulation; (ii) using WeDeploy in connection with illegal or unlawful file sharing; (iii) using WeDeploy as a “miner” or “forger” of BitCoin or other cryptocurrencies; (iv) using WeDeploy to operate a general-purpose proxy or “open proxy” service; (v) launching or facilitating a denial of service attack (DoS) from or on WeDeploy; (vi) posting, transmitting, or distributing spam mail, mass mailings, chain letters, any robot, spider, site search/retrieval application, or other automatic or manual process or device to retrieve or index data or "data mine"; (vii) interfering with others’ use and enjoyment of WeDeploy, including intentionally attempting to overload any portion of WeDeploy; or (viii) engaging in any activity that inappropriately restricts or inhibits any other user from using or enjoying WeDeploy, including hacking, cracking, spoofing, or defacing any portion of WeDeploy.
You may not use WeDeploy in any manner that would comprise or violate the security of WeDeploy or other users of WeDeploy, including but not limited to: (i) accessing or using WeDeploy in violation of law, or any applicable terms and conditions such as the WeDeploy Services Agreement; (ii) using any means to circumvent the security limitations of WeDeploy. (iii) imitating or impersonating another person or his or her email address or creating false accounts intended to misrepresent yourself or the source of your email; (iv) intercepting or monitoring activity on WeDeploy without permission; or (v) attempting to test the vulnerability of the security of WeDeploy or to breach any of the security measures of WeDeploy.
Liferay encourages you to report violations of this Acceptable Use Policy to Liferay. Liferay has the right, but not the obligation, to monitor your activity and Content to determine your compliance with this Acceptable Use Policy. Liferay has the right in its sole discretion to edit, refuse to post or remove any material submitted to or posted on a Liferay website or WeDeploy that Liferay finds to be in violation of this Acceptable Use Policy or is otherwise objectionable. You are solely responsible for your activities and any Content you post, transmit, or otherwise make available on a Liferay website or other WeDeploy resource. You acknowledge and agree that Liferay does not have any liability for any action or inaction with respect to your Conduct, communication or posting on a Liferay website or other WeDeploy resource. Liferay may report any activity Liferay believes may violate any law to law enforcement, regulators, or other relevant third parties.
The trademarks, trade names, service marks and logos of Liferay, Liferay’s Affiliates and third parties used in the Liferay websites and other WeDeploy ("Marks") are the property of Liferay, Liferay’s Affiliates or the third parties. Customer has no right to use any such Marks, and nothing contained in WeDeploy or this Policy grants any right to use (by implication, waiver, estoppel or otherwise) any Marks without the prior written permission of Liferay, Liferay’s Affiliate or the respective third party owner. The Liferay Trademark Guidelines and Policies which govern any permitted use of Liferay Marks can be found at www.liferay.com/trademark.
You may encounter links to non-Liferay websites, services, content or other external sources while using WeDeploy, which should not be interpreted as endorsement of Liferay of such third party sites or the company, products, services or content to which they link as they are not under Liferay’s control, Liferay has not reviewed or is otherwise responsible for them and Liferay is not responsible for the content of any linked site or any link contained in a linked site. If you decide to access any third party site, product or service linked through WeDeploy, you do so at your own risk and you agree that Liferay is not responsible or liable for any loss or expenses that may result due to your use of (or reliance on) the external site or content.
7. Remote Security Testing
Remote security testing (aka penetration testing) is only allowed, if you received advanced approval from Liferay by requesting and submitting a Remote Security Testing approval form via email to email@example.com.
Liferay reserves the right to update this Policy from time to time and for any reason by posting an updated version no later than thirty (30) days prior to the posted effective date of such update at www.wedeploy.com/terms. You are responsible for monitoring this site and ensuring you are aware of the current terms. Your continued use and access of WeDeploy after the posted effective date signifies your acceptance to the updated Policy.