This software subscription agreement is made up of these Terms of Service together with the Annexes, is made between Customer ("Customer" or "you") and the WebGazer, Inc. ("WebGazer") (each a "Party", collectively, the "Parties") and governs Customer's use of the Software and related services.
Subject to the terms of this Agreement and payment of all applicable fees, WebGazer grants to Customer a non sublicensable, non-transferable, non-exclusive right to access and use the Software during the Term and in accordance with this Agreement. Customer will not be provided with and shall have no right to any software code and WebGazer reserves the right to suspend Customer's access to the Subscription Services for scheduled or emergency maintenance.
Customer shall not allow any third party to: (a) use (via direct user interactions, scripts or APIs) or access the Software in any manner which harms, unduly burdens or impairs performance of the Software or WebGazer systems, (b) provide access to the Software to any third party or otherwise permit a third party to use or benefit from the Software, (c) copy, modify or reverse engineer the Software or otherwise attempt to discover any source code or underlying technical information, (d) access, store, or transmit any viruses, spam, malware, bulk mail, or duplicative messages, or any material during the course of its use of the Software that is unlawful or harmful, or (f) use the Software: (i) to try to gain unauthorized access to or disrupt any service, device, data, account or network, (ii) post, transmit, upload, link to, send or store any content that is unlawful, abusive, obscene, or discriminatory or (iii) to store or transmit content that infringes any person's Intellectual Property Rights.
By subscribing to one of the offered subscription plans, you agree to pay WebGazer the monthly or yearly subscription fees indicated for that service. Payments will cover the use of that service for a monthly or yearly subscription period as indicated. For any upgrade or downgrade in plan level, the credit card that you provided will automatically be charged or credited the new prorated amount for the current payment period and the new rate will apply on your next billing cycle. WebGazer reserves the right to change the payment terms and fees upon thirty (30) days prior written notice to you.
WebGazer automatically monitors your websites based on your configured preferences. The monitoring methods include: (i) checks the status of your website periodically, (ii) pulses for heartbeat monitoring handler, (iii) SSL monitoring, (iv) performance monitoring, (v) alerts and notifications, (vi) hosting of status pages.
"Confidential Information" means any information or materials of WebGazer that is reasonably considered in the circumstances to be confidential or proprietary, including, but not limited to, trade secrets, hardware, software (source code and object code), specifications, designs, plans, drawings, data, prototypes, discoveries, research, developments, processes, procedures, intellectual property, market research, marketing techniques and plans, business plans and strategies, pricing policies and price lists, and financial information or other business and/or technical information and materials, whether in oral, written, electronic, graphic or machine-readable form. You agree to keep strictly confidential the Confidential Information and to not use or disclose the Confidential Information for any purpose other than as required for your use of the Services.
Some countries and jurisdictions do not allow the disclaimer of implied terms in contracts with consumers and as a result, the contents of this section may not apply to customer. Except as expressly provided herein, to the greatest extent permitted by applicable law, WebGazer expressly excludes and disclaims all warranties and conditions of any kind, whether express, implied, statutory, or otherwise. Without limiting the generality of the foregoing, WebGazer specifically disclaims all express or implied warranties of design, merchantability, fitness for a particular purpose, title, quality, and non-infringement, that the services will meet customer’s requirements, or that the services will always be available, accessible, uninterrupted, timely, secure, accurate, complete, or error-free. In addition, WebGazer does not warrant any connection to or transmission from the internet. No advice or information, whether oral or written, obtained from WebGazer or elsewhere nor any course of dealing will create any warranty or condition not expressly stated in this agreement. Except as expressly provided herein, the services are provided on an “as is” and “as available” basis. These limitations shall apply notwithstanding the failure of essential purpose of any limited remedy provided herein.
WebGazer claims any and all responsibility or liability in relation to the content made available through the services, including usage data, customer information, and any content or services provided by third-parties. WebGazer does not control or vet customer information and is not responsible for what customers post, transmit, or share on or through the services. WebGazer expressly denies any responsibility resulting from hacking, tampering, or other unauthorized access or use of the services or the information contained therein as well as your customer account and customer information.
Except as expressly provided herein, in no event shall either party's aggregate liability to the other for all claims of any kind, including any claims arising out of or related to this agreement, whether by statute, contract, tort, or under any other theory of liability, exceed the fees paid by the customer for the services subject to the claim during the three (3) months period prior to the first event or occurrence giving rise to such liability.
To the maximum extent permitted by applicable law, in no event shall either party, its directors, employees, agents, or licensors be liable for any indirect, punitive, incidental, special, consequential, or exemplary damages, including damages for loss of profits, goodwill use, or data or other intangible losses, that result from the use of, or inability to use, the services or any other aspect of this agreement.
Any claims or damages that one party may have against the other party shall only be enforceable against the parties to this agreement and not any other entity or its officers, directors, representatives or agents.
The foregoing limitations of liability do not apply to the indemnity obligations set forth in this agreement. The parties acknowledge and agree that the essential purpose of this section is to allocate the risks under these terms between the parties and limit their potential liability given the fees charged under this agreement, which would have been substantially higher if WebGazer were to assume any further liability other than as set forth herein. The parties have relied on these limitations in determining whether to enter into these terms. Nothing in this agreement is intended to exclude or restrict or shall be construed as excluding or restricting the liability of WebGazer for (i) death or personal injury caused by the negligence of WebGazer, its employees, or its agents; (ii) willful misconduct, fraud, or gross negligence of WebGazer or its employees; or (iii) any liability that cannot be limited or excluded by applicable law.
You agree to indemnify and hold harmless WebGazer, 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 products, including but not limited to your violation of this Agreement.
Neither Party may assign or otherwise transfer any of its rights or obligations hereunder, (except by merger, sale of assets, change of control, operation of law or otherwise) without the prior written consent of the other Party (not to be unreasonably withheld), and any attempted assignment without such consent will be void. Notwithstanding the foregoing, either Party may assign this Agreement in its entirety (including all exhibits), without the consent of the other Party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its shares or assets. In the event of such assignment, Party will notify the other Party in writing.
WebGazer may communicate with you about the Services or these Terms, including any changes to these Terms, by email or by posting notices on the Site. Unless expressly prohibited by law, you consent to receive communications relating to the Services or our business relationship from WebGazer electronically, and agree that all notices, waivers, agreements, disclosures and other communications satisfy any legal requirements that such communications be in writing.
Each provision of this Agreement is severable. If any provision of this Agreement is or becomes illegal, invalid, or unenforceable in any jurisdiction, the illegality, invalidity, or unenforceability of that provision will not affect the legality, validity, or enforceability of the remaining provisions of this Agreement or of that provision in any other jurisdiction.
The terms of this Agreement, together with any and all Exhibits and other terms incorporated by reference, constitute the entire agreement between the Parties with respect to the subject matter thereof and supersede any prior or inconsistent agreements, negotiations, representations, and promises, written or oral, with respect to the subject matter and is binding upon the Parties and their permitted successors and assigns.
If you wish to contact WebGazer with any questions, comments or concerns regarding the Services or these Terms, please contact firstname.lastname@example.org
This Agreement and each of the documents contemplated by or delivered under or in connection with this Agreement are governed exclusively by, and will be enforced, construed, and interpreted exclusively in accordance with, the laws applicable in the State of Delaware. Each of the parties irrevocably consents to the exclusive personal jurisdiction of the federal and state courts located in Delaware, as applicable, for any matter arising out of or relating to this Agreement, except that in actions seeking to enforce any order or any judgement of such federal or state courts located in Delaware, such personal jurisdiction shall be nonexclusive.