Terms and conditions

1. INTRODUCTION

These Terms of Service (“Terms”) set forth the terms and conditions that apply to your use of certain WebPros software, subscriptions or Services (collectively the “Services”) as defined in these Terms and its annexes. Please review these Terms carefully: they are a legal and binding agreement between you and the Vendors (as defined below). By (a) creating an account in the Services; (b) placing an order through the Services or the associated online store; or (c) using the Services in any other manner, you agree to these Terms. You cannot use the Services if you do not agree to these Terms.

The Services may give you a central point of access to certain other services and systems of Vendor to license, support and maintain your software products and related services. The features of the specific Service are described on their relevant websites and within the annexes hereto. The Service features may be changed by Provider (as defined below) or Vendor at any time upon written notice. The Provider has no obligation to introduce any updates, enhancements, modifications, revisions, or additions to the Services. Certain aspects of the Services may be in “Beta.” If so indicated, the provisions of these Terms governing Beta items also apply. If you purchase third-party products offered through the Services, you may be required to agree to, or review, additional terms and conditions. Purchasing those products indicates your acceptance of those terms and conditions.

2. CONTRACTING PARTIES

The Services may be licensed to you by different members of the WebPros group of companies: either (a) WebPros International L.L.C., 2550 North Loop W., Suite 4006, Houston, TX 77092 / USA (“WebPros U.S.”) and Canada WebPros International Ltd., 4950 Yonge Street, Toronto, Ontario M2N 6K1 / Canada for licenses in the Americas; or (b) WebPros International GmbH, Vordergasse 59, 8200 Schaffhausen / Switzerland (“WebPros EU”) for licenses elsewhere. Socialbee Services are licensed to you by SocialBee Labs SRL, Cluj-Napoca, Poet Grigore Alexandrescu, St no.51, Sc.1., 3rd floor, Ap. 14, Cluj County/Romania and XOVI Services are licensed to you by XOVI GmbH, Hohenzollernring 72, 50672 Cologne / Germany, both as European members of the WebPros group of companies and subsumed under the term “WebPros EU” herein. In these Terms, WebPros U.S. and WebPros EU are each a “Vendor”, collectively they are referred to as “we” or the “Provider”. When licensing their individual software products to you, they are referred to as the Vendor of that particular software product. The Provider you contract with will be based on your billing address, or if none is provided, your contact information.

However, due to the fact that the Services will allow you to license, maintain and administer WebPros U.S. as well as WebPros EU products and services, any purchases you make through the Services will be provided directly by the respective Vendor of such product or service, directly. The entity with whom you are contracting will be shown in the order summary and the corresponding invoice.

3. WHAT THE SERVICES PROVIDE

WebPros offers a variety of Services and websites, the use of which is governed by these Terms and as specified by the corresponding Service Annex(es) attached hereto. In the event of managed Services provisioned to you via the WebPros Cloud, such Services may include both, use rights for certain WebPros software functionalities as a service and (depending on the Service ordered) the associated hosting infrastructure for such Service. Furthermore, the Services may also provide a method by which you may access different Services and features using a single set of credentials / single sign on (“SSO”). This may require a centralization and combination of different available data sources into one shared system. If you do not agree to a combination of available data for your use of the Services, you should NOT register for any of the Services.

4. LICENSE TO USE

Subject to your full and ongoing compliance with these Terms, including, without limitation, payment of all applicable fees for any licensed products or Services, Provider hereby grants to you, and you accept, a personal, limited, nonexclusive, nontransferable, non-assignable, revocable license to use the Services during the Term, only as authorized in these Terms.

Use of the products and licenses provided via the Services may be governed by the underlying products’ end user license agreements (EULAs), in their then-current version. The same applies to any third-party products or licenses, potentially provided to you via the Services. Any use of these products or licenses is subject to your prior acceptance of the respective underlying product EULA.

5. YOUR OBLIGATIONS AND CONDUCT

a) You agree to be solely responsible for: (i) any passwords used in the Services and their security, and (ii) the provision of true, accurate, current and complete information when registering for the Services. Accordingly, if you provide any information that is false, inaccurate, out of date or incomplete, or Provider has reasonable grounds to suspect that such information is false, inaccurate, not current or incomplete, Provider may suspend or terminate your account and refuse any and all current or future use of, or access to, the Services (or any portion thereof).

Provider is not liable for any unauthorized use of your Services account or any third-party services associated with it and you accept all risks of unauthorized access to such information based on grounds, not attributable to Provider (e.g., your disclosure / loss of your login credentials).

You will not use available SSO features (if any) of the Services to provide services to third parties.

Furthermore, Provider shall have the right to delete abandoned free accounts or access to free Services after a reasonable timeframe of inactivity.

b) The use of the Services as well as the creation, modification or termination of any product licenses through the Services may have a direct commercial effect on a Vendor’s license invoice to you. This is why you will bear any financial liability as a result of any Service use, licensing or service transaction, initiated within your account in the Services.

c) You agree not to use the Services for any illegal, destructive or fraudulent purposes. Any use of the Services for purposes other than the setup, maintenance and administration of your own servers, websites and product licenses is forbidden and unlicensed.

In the event the Services allow you to enter, manage, maintain or change data of others (e.g., your team members or customers), your use and processing of any form of personal information belonging to these persons may be restricted by privacy laws and you reaffirm that you have all required consents and authorizations by the affected data subjects for such processing. Provider is not responsible and disclaims any liability for breaches of privacy laws by your use of the data you provide to the Services. Furthermore, some systems or Service features may mandatorily require your acceptance of the WebPros Data Processing Agreement to allow WebPros to process the related data within the Services for such purpose. The WebPros DPA is attached to these Terms as Annex 2 and is made an integral part of these Terms in the event and for as long as you utilize a WebPros Service which involves the processing of personal data.

d) You agree that you will not misuse the Services. Any use which violates these Terms, the WebPros Privacy Policy, additional conditions or applicable laws and regulations constitutes “misuse”. In such a case, WebPros may, at its own discretion, deny or terminate access to the Services without prior notice or justification requirement. While using the Services, you will not do any of the following: (i) send unauthorized commercial communications (such as spam) via the Services or otherwise; (ii) collect content or information from customers by automated means without express authorization by customers; (iii) upload, host, send or distribute viruses or other harmful code; (iv) bully, threaten or harass others; (v) post, send or transmit any content that is illegal, hateful, obscene, threatening, violent, abusive, defamatory, infringing of intellectual property rights, invasive of privacy, or containing graphic or gratuitous violence, or otherwise objectionable to others third parties; (vi) harass, threaten, embarrass or inconvenience any other person or entity, or impersonate any other person or entity, or otherwise prevent any person from using or benefiting from the Services; (vii) take any action that imposes a disproportionately large usage load on the Services, unless expressly authorized in advance by WebPros in writing; (viii) publish, post or transmit misleading content; (ix) transmit any information or content that you are not authorized to provide under any applicable law or under any contractual or fiduciary relationship, or that otherwise interferes with or infringes the rights of any third party; (x) encourage or promote participation in or distribution of content, pyramid schemes, surveys, chain letters, spam, or unsolicited email; (xi) publish, post or transmit hyperlinks to other websites that violate these Terms; (xii) facilitate or encourage violations of these Terms; (xiii) interfere with, disrupt, damage or create an undue burden on the Services or the networks or services connected to the Services; (xiv) commit or contribute to any criminal offense or tortious act; (xv) solicit or post personally identifiable information of others, or knowingly collect information from minors; (xvi) solicit login credentials or access another party’s account; (xvii) attempt to impersonate any person or entity, including but not limited to a WebPros employee, in order to falsely state or otherwise misrepresent affiliation with a person or entity; (xviii) provide false personal Information or create an account for another person without authorization; (xix) engage in the sale or other transfer of your account without WebPros prior permission.

 

6. OUR OBLIGATIONS

b) Provider’s sole and exclusive obligation shall be to provide you with reasonable access to Services you are eligible for.

c) Technical support for the Services will be provided to you directly by your Provider. As a registered account holder, you will be eligible of submitting support requests to Provider relating to availability and functionality of the Services in general. Product related requests for technical support will have to be submitted to the respective product Vendor, directly, and will be subject to their individual support policies.

d) If SSO features are included in the Services you use, these SSO features provide connectors, configured by you, that interact with other WebPros services (Core Products, Support Systems, Monitoring, Testing platforms etc.) or third-party applications. You acknowledge and agree that the Provider is not responsible for any changes to, functionality of, or defect with, any third-party applications and that interoperability with the SSO features of the Services can be broken temporarily or permanently at any time.

e) The Provider disclaims any responsibility or liability with respect to the data entered/stored by you when utilizing the Services. Accordingly, the Provider under no circumstances assumes responsibility for any output of the Services, such as designed websites and their content, databases, analytical data, Social Media posts, page rank data or servers. Although the Provider expressly prohibits the uploading of data that is illegal, hateful, obscene, threatening, violent, abusive, defamatory, infringing of intellectual property rights, invasive of privacy, contains graphic or gratuitous violence, or is otherwise objectionable to third parties, such content will not be screened. You hereby accept that you may be exposed to such content and use the Services at your own risk. The Provider reserves the right, but is not obligated, to remove any content that the Provider deems to be in violation of these Terms or applicable law without notifying you. You understand and agree that the Provider assumes no liability for any risk, damage, injury, penalty or loss that may result from content submitted to or distributed via the Services or removed by the Provider on subjectively reasonable grounds.

7. FEES AND PAYMENTS

a) Payments will be processed via the individual Vendor and its third-party processors (if applicable). Whenever a commercial transaction is initiated by you through the Services by licensing a software product or ordering a Service, you will either be forwarded to the online store, licensing system of the respective Vendor, directly or to a payment provider as the chosen merchant of record (e.g. Stripe, Cleverbridge) for the corresponding purchase. By initiating a purchase via one of WebPros’ payment providers, you agree to be additionally bound by such payment provider’s terms of service. WebPros disclaims any liability or responsibility for the performance of the payment transactions via a payment provider. WebPros is specifically not liable for loss or damage from errant or invalid transactions processed via a payment provider. This includes transactions that were not processed due to a network communication error, or any other reason. See any of the product specific Annexes hereto for more information.

b) If you are already in a contractual relationship (an “Existing Agreement”, such as a Partnership or Partner NOC Agreement) with a Vendor, relating transactions initiated by you via the Services may be processed in accordance with the terms and conditions of the Existing Agreement automatically and will be charged to you in accordance to the agreed then-actual pricing. In the absence of an Existing Agreement, all transactions initiated by you via the Services will be charged to you under retail conditions via the respective Vendor’s online store or payment provider as further defined in the corresponding product-specific Annex hereto.

c) Vendor may add, remove or modify products and services offered as part of the Services at any time and without notice. In addition, Vendor may amend these Terms and the product pricing at any time, as set out herein, by providing 30 days prior written notice of such a change. If you do not agree with such a change, you must terminate and cease using the impacted product or Service prior to the thirty day period. Service subscriptions, pre- paid for a specific period of time will be affected by the amended terms upon their respective renewal dates. Upon termination, your obligation to pay for the terminated Service will cease upon the next renewal date. For price increases of long-term subscriptions, you may be eligible for a pro-rata refund of fees pre-paid up to the effective date of your termination. Your continued use of the product or Service after the 30 days period indicates your acceptance of changes to subscription terms or pricing. To the extent the terms of your Existing Agreement with an individual Vendor apply to pricing and fees for a particular product or Service, those terms supersede the prior sentence.

d) Subject to special provisions contained in Annex 1 for consumer purchases within the Services, all fees and charges as a result of any commercial transaction initiated via the Services shall be payable net cash without deductions for taxes, assessments, fees, or charges of any kind. You are responsible for paying all sales, use, excise, value-added, withholding or other tax or governmental charges imposed on the licensing or use of the Services. In the event withholding taxes apply to any payment from you to the respective Vendor, you agree that either the Vendor may automatically increase the original license or service pricing by the amount of such taxes or you will remit such taxes to your respective authority at your place of business yourself, with the effect that after deduction of such taxes, the Vendor will receive the original fee owed. In case an Existing Agreement exists, all transactions initiated by you will be subject to the payment and fees provisions of your Existing Agreement. If you do not have an Existing Agreement with either Vendor, the pricing and term provisions will be those set out herein or within the product itself and the WebPros EU EULA applies if WebPros EU is the licensor or conduit for sale of the product. The WebPros U.S. EULA applies if WebPros U.S. is the licensor or conduit for sale of the Service or product.

e) If a Vendor licenses a third-party software product to you, the Vendor acts as an authorized reseller (or sub-licensor) of such third-party product. Any financial obligation concerning such third-party product, beyond the designated license fees for such product, shall be in your sole and exclusive responsibility.

f) Recurring fees for ongoing licenses or Services will be charged by the respective Vendor or payment provider directly in its invoices to you. You hereby acknowledge and agree that if you are entering into commercial relationships with different Vendors via the Services, you will receive one invoice per Vendor for each license/service term. The agreed payment term is set forth on a Vendor’s invoice(s) to you.

g) Unless set forth to the contrary in an Existing Agreement or invoice, all invoices are due immediately upon purchase and payable within fourteen (14) days from the date of Vendor’s invoice (“Invoice Date”). Should you dispute any invoice, you must provide written notice of the dispute to the Vendor within 7 days after the invoice was transmitted to you, specifically stating the reasons for your dispute. Should the Vendor agree with your dispute and in the Vendor’s sole and exclusive discretion, the amount determined by the Vendor to be invoiced in error shall be applied as a credit to the next full invoice or paid back to you, directly using the payment method used for the original purchase. Should the Vendor reject the dispute, it shall notify you in writing. All determinations of the Vendor shall be final.

h) All payments shall be made in the invoiced currency. If payment in full is not received by the Vendor per the terms of the invoice, you will be assessed annual (pro-rated) interest at the rate of five percent (or the maximum rate permitted by law) until the invoice is paid in full. In the event your account has to be referred to a collection agency or a law office, you shall also pay all costs incurred by the Vendor for actions taken by such collection agency or law office.

i) The Services are directed to adults only. If you are below the legal age in your jurisdiction, the WebPros Services are not available to you. The majority of WebPros Services as well as these Terms are further directed to businesses only. Certain Services may however allow consumers to purchase own subscriptions, directly. In these cases, these Terms, together with the special terms for consumer customers as well as the respective service-specific terms included in the Annexes hereto, apply.

8. TERM / TERMINATION

a) Upon your successful registration for a Services account, these Terms will govern your use of the Services for as long as you make use of it. Subscriptions established under the Services account may have different durations. The subscription term begins on the effective date and ends on the same day of the month in which the selected subscription term expires. If the month in which the subscription term expires does not have the date corresponding to the effective date, the subscription term ends on the last day of that month. In the case of chargeable subscriptions that can be booked directly within the Services, the contract term for these subscriptions begins immediately upon completion of the corresponding transaction by clicking the order button for the agreed and chosen term (annual or monthly). The subscription term is hence automatically extended at the end of the then current subscriptions term by the previously selected term. Different terms may apply for EU Consumers as set out in Annex 1 hereto.

b) You may stop using the Services, as well as the applicability of these Terms, by permanently deleting your Services account in your account preferences or stop the Service via the merchant of record you originally purchased from. The Services account will provide an option to terminate Services via a cancellation link. For the avoidance of doubt and for clarity, the termination of a WebPros account as a management account for different Services does not have any effect on existing licenses, subscriptions or services, previously obtained from the respective Vendor through the account. If you no longer wish to use a Service or subscription, you can indicate this in your Service account settings. In this case, you can still use the terminated Service until the end of the current subscription period. You will not receive a refund for pre-paid terms, unless WebPros decides otherwise in its sole discretion or if required by law.

c) If you cease using the WebPros account as an administration interface between you and Vendors, existing licenses and service subscriptions can only be modified or terminated directly with the respective Vendor. A termination of the WebPros account does not have any influence on separate subscriptions, previously entered into using the WebPros account.

d) Both you, or Provider, may at any time terminate your access to the Services and/or delete your Services account for cause if the other party fails to perform any material obligation imposed by these Terms or otherwise breaches any material provision of these Terms. Failure to pay fees of any type to a Vendor or Provider shall be a material breach of these Terms. Any such termination of your access or account will also terminate your eligibility for the receipt of free and paid services, subscribed to in the Services (e.g. Monitoring etc.).

e) Upon termination of a Service or Service account, you will not have access to such Services, including SSO features (if any), any longer. Accordingly, any information and data provided by you for the creation of your Service account will be deleted permanently by Provider. Your pre-Existing Agreement with a Vendor will not be affected by a termination of your Services account.

9. CONFIDENTIALITY OF INFORMATION / INTELLECTUAL PROPERTY RIGHTS

a) In the course of performing their obligations pursuant to these Terms, both you, Provider as well as a Vendor (as the case may be, each a “Receiving Party”) will be furnished with, receive, and otherwise have access to information concerning you, Provider or Vendor (as the case may be, each a “Disclosing Party”) or proprietary information belonging to the Disclosing Party, which information the Disclosing Party considers to be confidential. For the purposes of these Terms, “Confidential Information” shall include, but not be limited to, structural information about the architecture of products and any information relating thereto; all information relating to the party’s business, including, without limitation, financial, marketing, and customer information, and any other information that would be considered a trade secret during the applicability of these Terms and for a period of five years following their termination or expiration.

All Confidential Information shall be the property of the Disclosing Party. The Receiving Party shall: (I) hold all Confidential Information in strict confidence and refrain from disclosing Confidential Information to third parties, except as expressly authorized by these Terms; (II) use Confidential Information solely and exclusively for the purposes of fulfilling its obligations under these Terms, and only as expressly authorized by these Terms; and (III) accord Confidential Information at least the same level of protection against unauthorized use or disclosure that the Receiving Party customarily accords to its own confidential, proprietary, or trade secret information of a like nature, but in no event less than a reasonable level of protection. Upon termination of your access to the Services for any reason, or upon the request of the Disclosing Party, the Receiving Party shall either return to the Disclosing Party or destroy, at the sole option of the Disclosing Party, all Confidential Information.

b) In furtherance of the foregoing, both Parties may in the course of their respective responsibilities under these Terms either provide or be furnished with or have access to information which may qualify as “personal data” in some or all jurisdictions. Each party agrees and acknowledges that the other may collect, use and or process such personal data in performing its contractual duties and for general administrational purposes and may also disclose the personal data to third parties in its country of residence and abroad to the extent required by these Terms or if required for the performance of its obligations under these Terms, however always in accordance with the provisions of the applicable data protection laws in effect. By implementing and maintaining sufficient technical and organizational measures as requested by applicable data protection laws, either party makes sure that the other party’s personal data is kept in strictest confidence and protected sufficiently against disclosure, loss or destruction.

Any personal data provided by you to Provider in the course of setting up and maintaining your account to the Services will be processed by Provider in accordance with its then current privacy policy, available at www.WebPros.com. As set forth in section 3 above, the use, processing and combination of different data sources available from a Vendor is one of the core functionalities of some Services, which is why the lawfulness of processing of such data results from Article 6, subsection 1(b) of the GDPR. Additionally, and for the sake of clarity, your express consent for these processing activities is furthermore required when setting up your Services account.

c) The Provider does not sell your information to third parties for any commercial or non-commercial interest (a traditional “sale”). However, the term “sale” may in some jurisdictions also comprise providing data to third parties to process payment for services, and, if chosen by you, the provision of your personal information to entities whose products the Provider resells. If you opt out of the sale of your information by contacting the Provider (via [email protected] for the USA or [email protected] for all other geographies) or clicking the link within the Services and opting-out of the sale of your information, the Provider may be unable to provide services to you if your request not to sell information includes a prohibition on processing payments for the products you purchase in your jurisdiction.

d) You acknowledge that the Services as well as the products, services, documentation and other materials available through it (collectively the “Products”) are protected under copyright law and other laws protecting intellectual property rights. You further acknowledge the exclusive rights of the respective Vendor in and to its Products and acknowledge that the Vendor retains sole title to and ownership of such Products, and any copies thereof made by you. Nothing in these Terms or the conduct of the Parties shall give you any ownership interest in the Products, except for a limited right to use the same in accordance with these Terms and the Vendor agreements referenced in these Terms. You shall not represent, in any manner, that you have an ownership interest in the Products or cause any third party to commit any act challenging, contesting, or in any way impairing or attempting to impair the rights of the Vendor in the Products provided to you.

e) Certain Services also offer AI (Artificial Intelligence) functionalities to create, automate and manage the Service results. In the event you make use of an AI-based functionality within the Services, any intellectual property in the Service result so created vests in you. However, you acknowledge that AI-generated results may not be unique at all times and that any input into AI-based functionalities may be used by the AI to improve its deliverables. Accordingly, you confirm not to use proprietary information or data of others in AI-based functionalities. WebPros disclaims any responsibility or liability for AI-generated Service results. You are responsible for the results so created and their compliance with applicable laws. Before using AI-generated Service results, you will check that these will not (i) violate any applicable laws; (ii) violate these Terms of Service; or (iii) infringe, violate, or misappropriate any rights of a third party.

10. INDEMNITY

You hereby agree to indemnify and hold harmless Provider as well as Vendor, their subsidiaries and affiliates, and each of their respective directors, officers, employees and agents (collectively the “Indemnified Parties”), against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses, including, without limitation, reasonable attorneys’ fees (any or all of the foregoing hereinafter referred to as “Loss” or “Losses”), insofar as such Losses or actions in respect thereof arise out of or are based on (i) any breach of any representation or warranty made by you hereunder, (ii) any breach of any covenant or agreement made by you herein, or any failure by you to perform the obligations imposed by these Terms; (iii) any other Loss suffered by any of the Indemnified Parties arising from or relating to your conduct with respect to your use of the Services; or (iv) your violation of any rights of another person or entity, including, but not limited to, third-party intellectual property rights or moral rights as well as life or health of individuals.

These indemnification obligations are in addition to any indemnification requirements set forth in the Existing Agreements between you and the Vendor referenced in these Terms.

11. MODIFICATIONOFTERMSANDSERVICES

Provider may make changes to these Terms or other matters concerning the Services by displaying notices or links to notices to you in your Services account or by providing you with a change notice. It is your responsibility to periodically check these Terms and your account for changes. At any time, Provider reserves the right to modify or discontinue, temporarily or permanently, any of the Services offered (or any part thereof) with or without notice. Provider may make changes to the Services and a Vendor may make changes to their on-line store(s), including regarding products, services, programs, and prices, at any time without notice. Provider may, in its sole discretion, terminate your password or your use of any Services for any reason, including, without limitation, for lack of use or if Provider believes that you have violated or acted inconsistently with these Terms. Any termination of your access to the Services may occur without prior notice, and Provider may immediately de-activate or delete your account and all related information and files in your account and/or bar any further access to such files or the services. Provider will not be liable to you or any third-party for any termination, modification, or suspension of your access to the Services. However, in such case, Provider will have the right to entirely delete your account data (including personal information) after a reasonable timeframe and in accordance with the applicable privacy laws.

12. ADVERTISEMENTSANDPROMOTIONS

Provider may use the data you provide and which is generated by you within the Services or your usage behavior to provide you with tailored offerings or recommendations related to Vendor products, extensions, content, functionalities or best practices, which may be of interest for you (an “Offering”). A limited number of Services cookies, selected third-party services as well as up-to-date profile/account information help Provider choosing only relevant recommendations, which is why you are asked to periodically check the data you provide using the Services for accuracy. Whereas some of the data you provide is necessarily required for setting up your account, you will always have the possibility to provide additional data to further personalize recommendations and Offerings. It is your responsibility to determine the fitness of any third party with whom you transact as a result of any Offering.

In the event such Offerings involve services or products of third parties available from a Vendor via the Services, any correspondence or business dealings with, or participation in promotions of, advertisers other than a Vendor found on or through the Services, including direct payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such Offerings, are solely between you and such advertisers. Neither Provider, nor a Vendor, is responsible or liable for any loss or damage of any sort incurred as the result of any such Offerings or as the result of the presence of advertisers as being part of the Services.

13. LINKS

Within the Services or websites you may be provided with links to other Internet sites or resources (such as third- party vendors, etc.). Because Provider has no control over such sites and resources, you acknowledge and agree that Provider is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. Provider is not responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such third-party content, goods, websites or services available on or through any such site or resource. Provider is providing these links to you only as a convenience, and the inclusion of any link to such sites does not imply endorsement by Provider of those sites.

14. REPRESENTATIONSANDWARRANTIES

a) Provider warrants that it has the right to provide you with access to the Services as well as to connect the Services to the associated vendor systems, products and services. Furthermore, Provider warrants that the Services substantially function in accordance with their respective feature description or documentation for a period of at least 90 days from the license / subscription start date. Except for the warranties set out in the prior sentence, the Services are provided to you ‘as is’ and ‘as available’ and all other warranties, express or implied, included, but not limited to any implied warranties of merchantability or fitness for a particular purpose, title, quiet enjoyment, non- infringement or any implied warranties arising from course of dealing, course of performance or usage of trade are disclaimed. Provider makes no representations, warranties, conditions or guarantees as to the quality, suitability, truth, accuracy or completeness of any of the content contained in the Services or any product or service that the Services connect to.

b) You warrant to Provider that you: (a) have the full right, power and authority to enter into these Terms on behalf of yourself or the legal entity you are acting for and to undertake to perform the acts required of you hereunder; (b) the execution of these Terms by you, and the performance by you of your obligations and duties to the extent set forth in these Terms, do not and will not violate any agreement to which you are a party or by which you are otherwise bound; (c) when accepted (see section 1) or executed and delivered by you, these Terms and the applicable Annexes hereto will constitute a legal, valid and binding obligation on you, enforceable against you in accordance with the representations, warranties, terms and conditions; and (d) you will comply with all applicable laws related to the use and installation of the Services and the performance of your obligations under these Terms.

c) Provider furthermore makes no warranty or condition that: (i) the products or services will meet your requirements, (ii) the Services will be uninterrupted, timely, secure, or error-free, (iii) the results that may be obtained from the use of the Services and its services will be accurate or reliable, (iv) the quality of any products, software, services, information, or other material obtained by you through the Services will meet your expectations, or (v) any errors in any software or Services will be corrected.

d) Your use of the Services is at your sole risk. The Services as well as content provided therein are provided “with all faults”. Any material downloaded or otherwise obtained through the use of the Services occurs at your own discretion and risk and you are solely responsible for any damage to your computer system, loss of data or infringement that results from the download of any such material, including any damages resulting from computer viruses.

e) No advice or information, whether oral or written, obtained by you through the Services will create any warranty or condition not expressly stated in these terms.

15. LIMITATIONOFLIABILITY

a) Notwithstanding the warranty provisions set forth in these Terms, all of the obligations of Provider regarding warranties shall be contingent on your use of the Services in accordance with these Terms, as these Terms may be amended, supplemented, or modified by Provider from time-to-time. Provider shall have no warranty obligations regarding any failures of the Services, which are the result of accident, abuse, misapplication, extreme power surge or extreme electromagnetic field.

b) TO THE EXTENT PERMITTED BY THE APPLICABLE LAWS, YOU ACKNOWLEDGE AND AGREE THAT GRANTING YOU WITH ACCESS TO THE SERVICES DOES NOT INCLUDE ANY RESPONSIBILITY OR LIABILITY OF PROVIDER OR THE ASSUMPTION BY PROVIDER OF THE RISK OF YOUR OR ANY THIRD PARTY’S INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING LOST PROFITS OR LOST DATA) WHICH MAY ARISE IN CONNECTION WITH YOUR USE OF THE SERVICES. ACCORDINGLY, YOU HEREBY AGREE, THAT NEITHER PROVIDER NOR VENDOR SHALL BE RESPONSIBLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR SIMILAR DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT, LOST SAVINGS OR LOSS OF REVENUES ARISING FROM YOUR USE OF THE SERVICES, EVEN IF PROVIDER OR VENDOR HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS OF LIABILITY SHALL APPLY TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE. IT IS AGREED THAT PROVIDER’S AND VENDOR’S LIABILITY FOR SLIGHT OR SIMPLE NEGLIGENCE SHALL MUTUALLY BE EXCLUDED, HOWEVER SUBJECT TO THE LIMITATIONS BELOW OR GIVEN BY THE APPLICABLE LAWS. PROVIDER’S OR VENDOR’S LIABILITY IN CONNECTION WITH THESE TERMS AND THE USE OF THE SERVICES FOR ANY DAMAGES RESULTING FROM NEGLIGENCE OR GROSS NEGLIGENCE SHALL BE LIMITED TO THE AMOUNT OF THE TYPICAL AND FORSEEABLE DAMAGE. SUCH LIABILITY HOWEVER, WHETHER IN CONTRACT, IN TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OR EQUIVALENT OF US$ 1,000. THE EXISTENCE OF MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMIT. YOU ACKNOWLEDGE THAT THIS LIMIT REFLECTS THE ALLOCATION OF RISK SET FORTH IN THESE TERMS AND THAT PROVIDER OR VENDOR WOULD NOT HAVE ACCEPTED YOUR REQUEST FOR ACCESS TO THE SERVICES WITHOUT THESE LIMITATIONS ON ITS LIABILITY.

LIABILITY PROISIONS FOR CONSUMER TRANSACTIONS MAY DIFFER, SUBJECT TO THE PROVISIONS OF ANNEX 1 HERETO.

c) Provider is finally not liable for the loss of data and/or programs as far as the loss is based on the fact that you have refrained from making sufficient back-up copies and therefore from ensuring that lost data can be restored with reasonable effort.

d) Nothing in these Terms shall be deemed to exclude or limit either party’s liability with respect to (1) injuries to or death of any person, caused by a party or its representatives, auxiliary persons (executive and non-executive staff) and subcontractors; (2) loss and damages caused by willful intent or gross negligence by either party or Its representatives, auxiliary persons (executive and non-executive staff) and subcontractors; (3) any indemnity or guarantee given by either party under these Terms; and (4) any mandatory liability according to the applicable law. In any case, the party’s liability hereunder shall be limited to the minimum required by the applicable law.

16. GENERAL

a) If WebPros U.S. is your Provider, these Terms and your use of the Services shall be governed by the laws of the State of Texas and you agree that jurisdiction and venue are appropriate in the applicable courts located in Harris County, Texas. The provisions of the U.N. Convention on Contracts for the International Sale of Goods are hereby mutually disclaimed.

b) If WebPros EU is your Provider, these Terms and your use of the Services shall be governed by the laws of Switzerland and the place of jurisdiction are the applicable courts located in Zürich / Switzerland. The provisions of the U.N. Convention on Contracts for the International Sale of Goods are hereby mutually disclaimed.

c) All notices, requests, and demands expressly contemplated by or related to these Terms or your use of the Services shall be made in writing and shall be deemed to have been duly given: (I) when hand-delivered to the addressee; (II) when provably transmitted by facsimile or e-mail (both with confirmation of receipt); (III) one business day after being given to an overnight courier with a reliable system for tracking delivery; or (IV) three business days after the day of mailing, when mailed by registered or certified mail, return receipt requested, postage prepaid.

d) All notices to a specific Provider shall be sent to addresses set forth at the beginning of these Terms and all notices to you will be sent to the address specified in your Services account. Each party shall promptly notify the other party in writing, as provided in these Terms, of a change of address or designated representative.

e) You agree that you will not, directly or indirectly, use, access, install, sublicense or resell any items provided to you through the Services, access the Services, or otherwise engage in any dealing or transaction, directly or indirectly, with or involving any country or region or any person if such use, access, installation, sublicense or resale of such items would be prohibited for any U.S. or EU citizen by virtue of any applicable law. You shall also ensure that no licensee or other third party, directly or indirectly, engages in any such use, installation, sublicensing or resale or engages in any such dealing or transaction. The foregoing commitments shall apply with respect to, without limitation, any individual or organization on the U.S. Treasury Department’s List of Specially Designated Nationals and Blocked Persons, the Consolidated Screening List, the SECO list or the Consolidated European Sanctions and Embargoes List or deal with any other individual who or organization that is the subject of a U.S. or EU legal measure that provides for sanctions blocking the property.

f) No waiver by you, Provider or a Vendor will be effective unless documented in writing, signed by an authorized representative of the party against which enforcement of the waiver is sought. The failure of either party to insist upon strict performance of any of the terms or provisions of these Terms, or the exercise of any option, right, or remedy contained in it, shall not be construed as a waiver of any future application of such term, provision, option, right, or remedy, and such term, provision, option, right, or remedy shall continue and remain in full force and effect.

g) If a court of competent jurisdiction finds any provision of the Terms to be invalid, the Parties agree that the court should endeavor to give effect to the Parties’ intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Services or the Terms must be filed within one year after such claim or cause of action arose or be forever barred. The section titles in the Terms are for convenience only and do not affect the interpretation or construction of these Terms.

h) The Parties shall be independent contractors under these Terms. Nothing in these Terms or in the conduct of the Parties shall be interpreted or construed as creating or establishing any relationship between the Parties other than that of independent contractors.

i) Either party’s non-performance hereunder will be excused, to the extent reasonably necessary, in the event that an act of God, war, civil unrest, fire, explosion, or other force majeure event that occurs without the fault or negligence of the non-performing party prevents timely performance under these Terms, provided that such failure to perform or delay could not have been prevented through the use of reasonable precautions, and such failure to perform or delay cannot reasonably be circumvented by the non-performing party through the use of alternate sources, work-around plans, or other means. The affected party will promptly notify the other party of the circumstances causing its failure to perform or delay. For as long as such circumstances prevail, the party whose performance is delayed or hindered will continue to use all commercially reasonable efforts to commence or resume performance without delay.

j) The provisions of any Existing Agreement or the Vendors’ respective EULAs for products shall prevail over any conflicting provisions of these Terms.

WebPros Terms of Service – Annex 1 – EU Consumer Terms

The EU consumer-specific terms contained in this Annex 1 place an integral part of the WebPros Terms of Service and exclusively apply to any transactions between a Provider and non-commercially acting end customers, residing in the European Union while using the Services (“Consumers”). The WebPros Terms of Service generally apply to these transactions as well, with modifications via these additional EU Consumer Terms. If you are using the Services as a Consumer or make any purchases through the Services as a Consumer, these additional terms apply and prevail over contradicting provisions of the general Terms of Service.

1. Term and Termination

In modification of Section 8 of the WebPros Terms of Service, subscription terms for Consumers will start upon the end of the statutory withdrawal period, will remain in effect for the chosen subscription term and will thereafter renew for similar terms until terminated. Consumer subscriptions with an initial term of 12 months will however thereafter only renew for successive one-month terms until terminated.

2. Withdrawal

WebPros grants Consumers (as defined in this Annex 1) the statutory right of withdrawal in accordance with these provisions. This right of withdrawal does not apply to businesses. Being a Consumer, a Service entered into online will legally only start after the end of the compulsory withdrawal period of 14 days, during which Consumers can withdraw from contractual relationships without cause upon written notice, unless approval for the immediate execution of the contractual obligations by WebPros has been granted by the Consumer before in return for waiving its right of withdrawal in accordance with EU consumer protection laws.

To exercise your right of withdrawal as a Consumer, you may either withdraw a Service in your account preferences or inform the Provider of your decision to withdraw from this contract by an unequivocal statement (e.g. a letter sent by post or an e-mail to [email protected]). You may use the sample withdrawal form provided at www.webpros.com, but this is not mandatory. In order to comply with the withdrawal period, it is sufficient to send the notification of the exercise of the right of withdrawal before the expiry of the withdrawal period.

If you as a Consumer effectively revoke a Service within the above-mentioned period, WebPros will refund payments made by you for the withdrawn Service subscription within fourteen days from the day on which notice of withdrawal has been received. WebPros will use the same means of payment which had been used for the original transaction. Under no circumstances will you be charged any fees for this repayment.

3. Limitation of Liability for Consumers

Any limitation of liability contained in the general WebPros Terms of Service is subject the applicable laws and Consumer protection regulations in the European Union. In the event, such laws or regulations restrict a limitation of liability towards Consumers, liability shall be limited to the largest extent allowed by the applicable laws, automatically.

4. Applicable Law and Jurisdiction

Unless otherwise stipulated by mandatory statutory Consumer protection regulations, the WebPros Terms of Service shall be governed by and construed in accordance with the laws of Switzerland. You agree that in the event of any dispute with respect to the WebPros Terms of Service or any Service thereunder, you will contact your Provider in order to solve the issue through mutual understanding and negotiation. If no solution is reached during these negotiations, you accept jurisdiction via the local or federal courts located in Switzerland, unless applicable laws provide you with an option to prosecute your rights in front of local courts. Wherever such right is legally negotiable, the applicable laws shall be the ones of Switzerland with place of jurisdiction in Zürich / Switzerland.

WebPros is neither willing nor obliged to participate in dispute resolution proceedings before a consumer arbitration board.