IMPORTANT: THIS SOFTWARE END-USER LICENSE AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR, IF PURCHASED OR OTHERWISE ACQUIRED BY OR FOR AN ENTITY, AN ENTITY) AND CPANEL. READ IT CAREFULLY BEFORE COMPLETING THE INSTALLATION PROCESS AND USING THE SOFTWARE. AMONG OTHER PROVISIONS, IT PROVIDES A LICENSE TO USE THE SOFTWARE AND CONTAINS TERMINATION AND WARRANTY INFORMATION AND LIABILITY DISCLAIMERS. BY INSTALLING AND USING THE SOFTWARE, YOU CONFIRM YOUR ACCEPTANCE OF THE SOFTWARE AND YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, THEN DO NOT INSTALL THE SOFTWARE AND RETURN THE SOFTWARE TO YOUR WEBSITE OR PLACE OF PURCHASE FOR A FULL REFUND.
Definitions.
“Activated” has the meaning given in Section 2.5.2.
“Agreement” means both the EULA and the Pricing and Term Agreement.
“Applicable Law” means applicable international, federal, state or local laws, statutes, ordinances, regulations or court orders.
“Beta Version” means any version of the Software released by cPanel for testing as determined by cPanel in its sole discretion, including without limitation versions of the Software designated by cPanel as “BETA” or “EDGE”.
“cPanel” means cPanel, Inc.
“cPanel Data” means all data collected by cPanel in connection with the use of the Software by You or any Third Party Users, including (a) the licensed or unlicensed status of the Software; (b) the source from which the license for the Software was obtained (i.e., cPanel or a cPanel affiliate); and (c) information about the server upon which the Software is installed (including the Licensed Server) including (i) the public IP address, (ii) the operating system and (iii) the use of any virtualization technologies on such server. Additionally, “cPanel Data” may also include information collected by cPanel from time to time concerning which features of the Software are most often used in order to improve and make adjustments to the Software.
“cPanel Distributor” means a cPanel Partner who has met the requirements to become a cPanel Distributor as determined by cPanel.
“cPanel Partner” means a cPanel partner who has entered into a valid and existing Partner NOC Agreement with cPanel.
“EULA” means this End-User License Agreement.
“Intellectual Property Rights” means trade secret rights, rights in know-how, moral rights, copyrights, patents, trademarks (and the goodwill represented thereby), and similar rights of any type under the laws of any governmental authority, domestic or foreign, including all applications for and registrations of any of the foregoing.
“Licensed Server” means the single server operating solely from the IP address identified by You in the Pricing and Term Agreement to which the terms and conditions of this Agreement shall apply. A Licensed Server may be a Virtual Private Server. You may update the IP address associated with the Licensed Server from time to time during the Term (a) by visiting http://www.cpanel.net/store/ or such other URL as cPanel may designate from time to time; (b) in the case of cPanel Partners, by using the Manage Interface (as defined in the Partner NOC Agreement); or (c) by such other method as cPanel may elect to provide from time to time during the Term.
“Manage Interface” means cPanel’s customer service, license management and Incident tracking system or such successor system as cPanel may designate from time to time which is presently available at https://manage2.cpanel.net/ or such other URL as cPanel may designate from time to time. Only cPanel Partners and cPanel Distributors may access and use the Manage Interface.
“Pricing and Term Agreement” means, as applicable, (a) the Pricing and Term Agreement entered into between You and cPanel in connection with the license of the Software which sets forth (among other things) pricing, term and payment provisions of this Agreement; (b) the pricing and payment provisions of the cPanel Partner NOC Agreement entered into between You and cPanel; or (c) the pricing and payment provisions of any agreement between You and a cPanel Partner (or other third party authorized to grant You the license) pursuant to which You obtained a license to use the Software. The Pricing and Term Agreement is hereby incorporated by reference and made a part of this Agreement as though fully set forth herein.
“Software” means the cPanel software program(s) supplied by cPanel together with this Agreement, including cPanel/WHM (but not including cPanel Server Suite) and corresponding documentation, source code, object code, Updates, user interfaces (including without limitation any web-based interfaces), printed materials and online or electronic documentation, excluding any third party components.
“Term” means the term of this Agreement as set forth by the term of the license obtained by You (a) in connection with the Pricing and Term Agreement; (b) in connection with the Partner NOC Agreement; or (c) from a cPanel Partner or other third party authorized to grant You the license.
“Territory” means the world, except to the extent that use or distribution of the Software in certain countries or regions would cause either party to violate Section 9.15 (Export Controls).
“Trademarks” means all domestic and international trademarks, service marks, logos, trade names, trade dress, including all goodwill represented by each of the foregoing, whether registered or unregistered, of cPanel including without limitation CPANEL (USPTO Registration No. 3058679 and CTM Registration No. 004908299), the cPanel logo (USPTO Registration No. 3290579), WEBHOST MANAGER (USPTO Registration No. 3246206), WHM (USPTO Registration No. 3282420) and ENKOMPASS (USPTO Trademark Application Serial No. 77673202). cPanel may add to the foregoing nonexclusive list of cPanel Trademarks by updating the cPanel Trademark Usage Policy which is located at http://www.cpanel.net/trademarkup.htm (or such other URL as may be designated by cPanel from time to time) and which may be updated by cPanel in its sole discretion from time to time (also referred to as “Exhibit 4” herein).
“Third Party Users” means authorized end users of the Software on the Licensed Server.
“Updates” means any bug fixes, patches and other modifications of the Software provided to You by cPanel.
“Virtual Private Server” means a virtual server operating on a single physical server upon which multiple virtual servers may operate.
“You” or “Your” means or refers to the individual or entity entering into this Agreement with cPanel, whether or not such terms are capitalized in this Agreement.
License.
License Grant. During the Term, solely within the Territory and subject to the terms and conditions of this Agreement, cPanel grants You a limited, non-exclusive, license to (a) install and use the Software on the Licensed Server only and (b) make a single back-up copy of the Software for archival purposes. Except as provided in Sections 2.2 (Sublicensing) and 2.3 (Transfer of License), the foregoing license is non-transferable, non-assignable and non-sublicensable.
Sublicensing.
Grant of Sublicense. You may sublicense the right to use (but not the right to install or make a back-up copy) the Software to Third Party Users solely on the Licensed Server; provided that (a) each Third Party User must enter into an agreement with You governing such user’s use of the Software on the Licensed Server (“Third Party Agreement”); (b) as part of such Third Party Agreement, each Third Party User must agree to the Flow-Through Provisions set forth in Section 2.2.3 as a condition of the Third Party User’s use of the Software; (c) the term of the Third Party Agreement and the scope of the license granted in the Third Party Agreement shall be no greater than the Term of this Agreement and the scope of the limited rights granted in this Section 2.2; and (d) each Third Party User must be eighteen years of age or older.
Grant of Sublicensing Rights to Third Party Users. You may grant to Third Party Users the right to sublicense the use of the Software to third party sublicensees (each such third party sublicensee shall also constitute a “Third Party User” for purpose of this Agreement) solely on the Licensed Server provided that Your sublicense grant is (a) subject to and in accordance with all obligations of this Section 2.2; (b) limited to the Term of this Agreement; and (c) no greater in scope and than the limited sublicense right granted in this Section 2.2. For the avoidance of doubt and without limiting the generality of the forgoing, each third party with access to the Software must enter into a Third Party Agreement governing the use of the Software and each Third Party Agreement must condition use of the Software on agreement to the Flow Through Provisions set forth in Section 2.2.3.
Flow-Through Provisions. Each Third Party Agreement must contain:
a. The Third Party User’s acknowledgement and agreement that the Third Party User may not alter, merge, modify, prepare derivative works based upon, adapt or translate the Software in any manner whatsoever, decompile, reverse engineer, disassemble, or otherwise reduce the Software to any human-readable form, or use the Software to develop any application having the same primary functions as the Software;
b. The Third Party User’s acknowledgement and agreement that cPanel owns all right, title and interest in and to the cPanel IP Rights substantially similar to Section 3.1 (Ownership);
c. A notice, substantially similar to the disclaimer set forth in Section 6.3 (Disclaimer), that cPanel disclaims all warranties and representations with respect to the Software;
d. A limitation of liability substantially similar to that set forth in Section 7 (Limitation of Liability) for the benefit of cPanel;
e. The Third Party User’s acknowledgement and agreement that it may use the Software only on the Licensed Server and only within the Territory;
f. The Third Party User’s acknowledgement and agreement that its right to use the Software shall automatically expire without notice upon the expiration or termination of this Agreement for any reason whatsoever;
g. The Third Party User’s acknowledgement and agreement that cPanel may in its sole discretion terminate, disable or suspend the use of and access to the Software by You or any Third Party User in the event of (i) any breach of this Agreement by You or (ii) any breach by the Third Party User of any provision concerning cPanel or the Software in any Third Party Agreement;
h. The Third Party User’s acknowledgement and agreement that cPanel is a third party beneficiary of any Third Party Agreement applicable to the Software with the full right to enforce the provisions of the Third Party Agreement as they pertain to cPanel and the Software;
i. The Third Party User’s acknowledgement and agreement that cPanel’s may in its sole discretion (i) monitor use of the Software; (ii) use the Authentication System; and (iii) collect and use the cPanel Data as set forth in Section 2.5 (Monitoring of Software);
j. The Third Party User’s waiver of any and all claims (whether under law, equity or any other theory of liability) against cPanel and its affiliates that may arise from a Third Party User’s inability to use the Software in the event (i) of the expiration or termination of this Agreement for any reason whatsoever; or (ii) that cPanel disables or suspends access to the Software as set forth in this Section 2.2;
k. A notice that the Third Party User may verify the licensed or unlicensed status of the Software and obtain other information about the license applicable to the Licensed Server by using the cPanel License Verification System located at http://verify.cpanel.net/ or such other URL as cPanel may designate from time to time; and
l. If You grant Third Party Users the right to sublicense the use of the Software to third party sublicensees pursuant to Section 2.2.2, the Third Party User’s acknowledgement and agreement that any grant of sublicensing rights (i) shall be subject to and conditioned upon a Third Party Agreement between the Third Party User and each third party sublicensee governing the use of the Software; (ii) that the Third Party Agreement shall include the Flow-Through Provisions set forth in this Section 2.2.3; (iii) that the sublicensing grant to a third party sublicensee in the Third Party Agreement shall be no greater in scope and no greater in duration than the rights granted to the Third Party User; (iv) that each third party sublicensee must be eighteen years of age or older; and (v) that all sublicensing rights shall be subject to terms and conditions substantially similar to Section 2.2.4 (Sublicensing Restrictions).
Sublicensing Restrictions. The right to sublicense the use of the Software to Third Party Users (and such Third Party User’s right to sublicense the use of the Software to third party sublicensees) is conditioned upon compliance with the terms of this Section 2.2. Upon request from cPanel, You and any authorized sublicensor shall provide cPanel with copies of any Third Party Agreements. Use of or access to the Software on a Licensed Server by Third Party Users who have not agreed to the terms to or complied with this Section 2.2 exceeds the scope of the license grant of this Agreement and constitutes a material breach of this Agreement. cPanel shall also have the right (but not the obligation) to notify any Third Party Users that cPanel will or has terminated, suspended or disabled their use of the Software due to the termination or expiration of this Agreement or a breach of this Agreement. In the event that cPanel notifies Third Party Users pursuant to the preceding sentence, cPanel reserves the right to offer products and services, including without limitation the Software, to any Third Party Users affected by such termination or expiration (or to refer such third parties to other cPanel licensees or affiliates). Except as set forth in this Section 2.2, You may not rent, lease or sublicense the Software.
Transfer of License. Subject to Section 9.8 (Assignment), You may transfer or assign this Agreement in its entirety to a third party upon notice to cPanel solely with respect to Monthly Licenses for the Software. One Year Licenses, Two Year Licenses and Three Year Licenses for the Software may not be transferred or assigned under this Section 2.3.
Restrictions of Use.
Installation of Software Package. The Software is licensed as a single product and none of the components in the Software may be separated for installation or use other than on the Licensed Server.
Back-Up Copy. If You make a back-up copy of the Software, such copy must be in machine-readable form and You must reproduce on such copy all Intellectual Property Right notices and any other proprietary legends on the original copy of the Software.
Commercial Use; Evaluation. If Your Pricing and Term Agreement provides for an Educational License, Non-Profit License or Trial Version License, You may not use the Software for any commercial purposes. Additionally, if Your Pricing and Term Agreement provides for a Trial Version License, You may only use the Software to review and evaluate the Software.
No Derivative Works; Reverse Engineering. You may not alter, merge, modify, prepare derivative works based upon, adapt or translate the Software in any manner whatsoever. Additionally, You may not decompile, reverse engineer, disassemble, or otherwise reduce the Software to any human-readable form, or use the Software to develop any application having the same primary functions as the Software.
Monitoring of Software.
Audit by cPanel. You agree that cPanel may audit Your use of the Software for compliance with this Agreement at any time, upon reasonable notice. You agree to cooperate with cPanel and any auditors selected by cPanel to complete the audit including by providing access to any facilities in which the Software is used or stored, including without limitation the facilities which house the Licensed Server and any facilities which cPanel reasonably believes house servers upon which the Software is installed. In the event that such audit reveals any use of the Software by You other than in compliance with the terms of this Agreement, You shall reimburse cPanel for all reasonable expenses related to such audit in addition to any other liabilities You may incur as a result of such noncompliance.
Mandatory Product Activation. If You do not complete the Mandatory Product Activation process within 15 days after You first install the Software, cPanel may in its sole discretion terminate this Agreement or suspend or disable access in whole or in part to the Software. “Mandatory Product Activation” means the process by which You supply to cPanel certain information during the installation or setup process of the Software. After You have completed the Mandatory Product Activation process, cPanel will activate the Software allowing You to use the Software subject to the terms and conditions of this Agreement. After cPanel activates the Software, such Software shall be deemed to be “Activated” for purposes of this Agreement. The Mandatory Product Activation process may require the use of the Internet or a long distance telephone call. You are responsible for any Internet access fees or telephone charges required for the activation or use of the Software.
Authentication System. The Software contains technological measures that, working in conjunction with cPanel computer servers, are designed to prevent unlicensed or illegal use of the Software (collectively, the “Authentication System”). You acknowledge and agree that such Authentication System allows cPanel to (among other things) (a) monitor use of the Software by You and Third Party Users as set forth in Section 2.5.4 (cPanel Data); (b) verify that the Software is only used on the Licensed Server; (c) suspend or disable access to the Software in whole or in part in the event of a breach of this Agreement or in the event of a breach by a Third Party User of cPanel-related provisions of a Third Party Agreement; and (d) terminate use of the Software upon the expiration or termination of this Agreement. You agree not to thwart, interfere with, circumvent or block the operation of any aspect of the Authentication System, including any communications between the Software and cPanel’s computer servers. For the avoidance of doubt, the Software will not operate unless cPanel from time to time verifies the Software using the Authentication System which requires the exchange of information between the Licensed Server and cPanel over the Internet.
cPanel Data. You agree that, without further notice to You or any Third Party User, cPanel may use technological means, including the Authentication System, to (a) monitor use of the Software as may be necessary to monitor for compliance with the terms of this Agreement; (b) collect language file modifications as provided in Section 3.6 (License to Language File Modifications); and (c) collect cPanel Data. cPanel reserves the right to copy, access, store, disclose and use cPanel Data indefinitely in its sole discretion; provided, however, that in the event that cPanel collects information concerning which features of the Software are most often used by You or Third Party Users, cPanel will remove personally identifiable information (if any) from such data and copy, access, store, disclose and use such data solely for the purpose of improving the Software.
Additional Licenses. For the avoidance of doubt, You may not install or use the Software on any other servers or computers other than the Licensed Server. If You wish to install and use the Software on servers other than the Licensed Server, You will need to obtain a separate license for each additional server, including without limitation a separate license for each additional Virtual Private Server.
Updates. The Software may automatically download and install updates from time to time from cPanel. These updates are designed to improve, enhance and further develop the Software and may take the form of bug fixes, enhanced functions, new software modules, completely new versions and additional products and services offered through or from the Software. You agree to receive such updates (and permit cPanel to deliver these to You) as a condition to Your use of the Software.
License Exchange. You agree that this Agreement shall supersede any prior End-User License Agreement and between You and cPanel applicable to the Software and that such prior End-User License Agreement is hereby terminated if (a) You previously purchased a license for the Software and are now purchasing a new license for the Software so that You may obtain additional technical support or updates during the Term of this Agreement; or (b) the copy of the Software You licensed with this Agreement is an upgrade to an earlier version of the Software. You may not continue to use the earlier version of the Software or transfer it to another person or entity.
Intellectual Property Rights.
Ownership. cPanel owns all right, title and interest, including all Intellectual Property Rights, in and to, (a) the Software; (b) the Trademarks; (c) cPanel Data; and (d) any and all Submissions (collectively, “cPanel IP Rights”).
Trademarks; Domain Names. This Agreement does not authorize You to use the Trademarks. If You wish to use the Trademarks, You must obtain a written license to use the Trademarks from cPanel. Without limiting the foregoing, You are required to comply with the cPanel Trademark Usage Policy which is located at http://www.cpanel.net/trademarkup.htm (or such other URL as may be designated by cPanel from time to time) and which may be updated by cPanel in its sole discretion from time to time. Additionally, You will not (a) assert any Intellectual Property Right in the Trademarks or in any element, derivation, adaptation, variation or name thereof; (b) contest the validity of any of the Trademarks; (c) contest cPanel’s ownership of any of the Trademarks; or (d) in any jurisdiction, adopt, use, register, or apply for registration of, whether as a corporate name, trademark, service mark or other indication of origin, or as a domain name or sub-domain name, any trademarks, or any word, symbol or device, or any combination confusingly similar to, or which incorporates in whole or in part, any of the Trademarks.
No Implied License or Ownership. Nothing in this Agreement or the performance thereof, or that might otherwise be implied by law, will operate to grant You any right, title or interest, implied or otherwise, in or to the cPanel IP Rights.
No Contest. You acknowledge and agree that the cPanel IP Rights are and shall remain the sole and exclusive property of cPanel. You agree that You shall never oppose, seek to cancel, or otherwise contest cPanel’s ownership of the cPanel IP Rights or act in any manner that would or might conflict with or compromise cPanel’s ownership of the cPanel IP Rights, or similarly affect the value of the cPanel IP Rights. Whenever requested by cPanel, You shall execute such documents as cPanel may deem necessary or appropriate to confirm, maintain or perfect cPanel’s ownership of the cPanel IP Rights. In the event cPanel is unable, after reasonable effort, to secure Your signature on any document or documents needed to apply for or to confirm, maintain or perfect cPanel’s ownership of the cPanel IP Rights for any other reason whatsoever, You hereby irrevocably designate and appoint cPanel as Your duly authorized attorney-in-fact, to act for and on Your behalf and stead to execute and sign any document or documents and to do all other lawfully permitted acts to confirm, maintain or perfect cPanel’s ownership of the cPanel IP Rights with the same legal force and effect as if executed by You. In the event You become aware that any third party is, or may be, infringing the cPanel IP Rights, You agree to notify cPanel of such fact.
Proprietary Notices. Third party trademarks, trade names, product names and logos included in the Software may be the trademarks or registered trademarks of their respective owners. You may not remove or alter any trademark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in the Software.
License to Language File Modifications. In order to improve the Software, cPanel may from time to time collect language file modifications from Licensed Servers. If You do not wish for language file modifications created by You to be collected and used by cPanel, You may check the checkbox next to “Do not send language file changes to cPanel” in the “Tweak Settings” area of WebHost Manager. If You do not make such an election within 15 days of installing the Software, cPanel may incorporate Your language file modifications into the language files distributed by cPanel with the Software or other cPanel products. In such an event, You hereby grant to cPanel a nonexclusive, irrevocable, royalty-free, worldwide, fully sublicensable and transferable right to distribute, reproduce, publicly display, create derivative works based upon and otherwise use the language file modifications to improve the Software or other cPanel products and services; provided, however, that (a) cPanel will not sell, share or otherwise distribute the language file modifications to third parties, except in connection with improved versions of the Software or cPanel products and services and as otherwise permitted in this Agreement; and (b) to the extent cPanel discloses the language file modifications to third parties, cPanel will not link the language file modifications to any user or account in an identifiable way.
Submissions. With respect to any feedback, suggestions or ideas (“Submissions”) that You submit to cPanel concerning the Software, or any of cPanel’s products or services, You agree that: (a) Your Submissions will automatically become the property of cPanel, without any compensation to You; (b) cPanel may use or redistribute the Submissions for any purpose and in any way; (c) cPanel is not obligated to review any Submissions; and (d) cPanel is not obligated to keep any Submissions confidential.
Payments. As a condition of the license granted to You pursuant to this Agreement, You shall pay cPanel the amount(s) set forth in Your Pricing and Term Agreement in accordance with the payment terms contained therein.
Term and Termination.
Term. This Agreement shall be effective on the Effective Date and shall automatically expire at the end of the Term.
Termination. cPanel may terminate this Agreement (a) in the event of Your breach of this Agreement (or a Third Party User’s breach of a provision of a Third Party Agreement relating to the Software or cPanel) upon 30 days notice to You if such breach remains uncured after the expiration of the 30 day notice period; (b) as set forth in Section 2.2 (Sublicensing); or (c) immediately without notice in the event of Your material breach of this Agreement (or a Third Party User’s breach of a material provision of a Third Party Agreement relating to the Software or cPanel). You acknowledge and agree that any breach by You or any Third Party User of the following provisions of the Agreement or any related provisions of a Third Party Agreement shall each constitute a material breach: (i) use of the Software in excess of the license grant in Section 2.1 (License Grant); (ii) any purported or attempted assignment, transfer, sale or other disposition or delegation of the Software in violation of Section 2.3 (Transfer of License) or Section 9.8 (Assignment); (iii) any violation of Section 2.4 (Restrictions of Use) including without limitation Section 2.4.4 (No Derivative Works; Reverse Engineering); (iv) any violation of Section 2.5 (Monitoring of Software) including without limitation any attempt, whether successful or not, to thwart, interfere with, circumvent or block the operation of any aspect of the Authentication System; (v) any conduct inconsistent with the cPanel IP Rights as set forth in Section 3 (Intellectual Property Rights); (vi) any breach of Section 4 (Payment); and (vii) any breach of Your representations and warranties under Section 6.1 (Mutual Representations). Additionally, a material breach by You of any agreement or contract between You and cPanel, including without limitation a breach of cPanel’s Trademark Usage Policy, any applicable EULA, the Technical Support Agreement or the Partner NOC Agreement shall be deemed a material breach of this Agreement and shall give rise to cPanel’s right to terminate as set forth in this Section 5.2. The foregoing list of material breaches is a nonexclusive list.
Effect of Termination. Upon the expiration or termination of this Agreement for any reason, (a) You must destroy all copies of the Software, including any back-up copy; (b) You must uninstall or delete the Software from the Licensed Server; and (c) cPanel may without notice and in its sole discretion terminate, suspend or disable access to the Software by You or any Third Party User.
Survival. Sections 1 (Definitions), 2.5 (Monitoring of Software), 3 (Intellectual Property Rights), 4 (Payments), 5 (Term and Termination), 6.3 (Disclaimer), 7 (Limitation on Liability), 8 (Indemnification) and 9 (Miscellaneous) shall survive the termination or expiration of this Agreement for any reason.
Representations; Warranties; Disclaimer.
Mutual Representations. Each party hereto represents and warrants to the other party that: (a) such party has the full right, power and authority to enter into this Agreement on behalf of itself and to undertake to perform the acts required of it hereunder; (b) the execution of this Agreement by such party, and the performance by such party of its obligations and duties to the extent set forth hereunder, do not and will not violate any agreement to which it is a party or by which it is otherwise bound; (c) when executed and delivered by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its representations, warranties, terms and conditions; and (d) such party will comply with all Applicable Laws related to the use and installation of the Software and the performance of its obligations under this Agreement.
Limited Warranty. cPanel represents and warrants that, for a period of ninety days from the date of delivery of the Software, when used with a hardware and software configuration recommended by cPanel, the Software will perform in substantial conformance with the documentation supplied with the Software. The limited warranty in this Section 6.2 shall not apply (a) to any Educational License, Non-Profit License or Trial Version License; (b) if Your version of the Software is a Beta Version; (c) if the Software has been altered in any way by a party other than cPanel; (d) the Software’s third party components; or (e) if any failure or error arises out of use of the Software with anything other than a cPanel recommended hardware and software configuration. Any misuse, accident, abuse, modification or misapplication of the Software will void the limited warranty in this Section 6.2.
Disclaimer. EXCEPT AS SET FORTH IN THE LIMITED WARRANTY OF SECTION 6.2, THE SOFTWARE LICENSED HEREUNDER IS PROVIDED “AS IS” AND CPANEL HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SOFTWARE, ITS THIRD PARTY COMPONENTS, AND ANY DATA ACCESSED THEREFROM, OR THE ACCURACY, TIMELINESS, COMPLETENESS, OR ADEQUACY OF THE SOFTWARE, ITS THIRD PARTY COMPONENTS, AND ANY DATA ACCESSED THEREFROM, INCLUDING THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CPANEL DOES NOT WARRANT THAT THE SOFTWARE OR ITS THIRD PARTY COMPONENTS ARE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. IF THE SOFTWARE, ITS THIRD PARTY COMPONENTS, OR ANY DATA ACCESSED THEREFROM IS DEFECTIVE, YOU ASSUME THE SOLE RESPONSIBILITY FOR THE ENTIRE COST OF ALL REPAIR OR INJURY OF ANY KIND, EVEN IF CPANEL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DEFECTS OR DAMAGES.
Limitation of Liability.
Lost Profits; Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CPANEL WILL NOT BE LIABLE FOR ANY LOST PROFITS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, BUSINESS INTERRUPTION, OR FOR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING, WITHOUT LIMITATION, UNDER ANY CONTRACT, NEGLIGENCE OR OTHER TORT THEORY OF LIABILITY) EVEN IF CPANEL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Total Cumulative Liability; Exclusive Remedy. EXCEPT FOR AMOUNTS OWED BY YOU TO CPANEL UNDER SECTION 4, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CPANEL’S AGGREGATE LIABILITY FOR DIRECT DAMAGES, UNDER THIS AGREEMENT (CUMULATIVELY) SHALL BE LIMITED TO THE TOTAL FEES COLLECTED BY CPANEL UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT FOR ANY BREACH OF THE LIMITED WARRANTY OF SECTION 6.2 YOUR SOLE AND EXCLUSIVE REMEDY AND CPANEL’S ENTIRE LIABILITY SHALL BE FOR CPANEL, AT CPANEL’S ELECTION AND WITHIN ITS SOLE DISCRETION, TO USE COMMERCIALLY REASONABLE EFFORTS TO (A) SUPPLY YOU WITH A REPLACEMENT COPY OF THE SOFTWARE THAT SUBSTANTIALLY CONFORMS TO THE DOCUMENTATION INCLUDED WITH THE SOFTWARE; OR (B) REFUND TO YOU YOUR LICENSE FEE FOR THE SOFTWARE; PROVIDED THAT YOU REPORT ANY NON-COMPLIANCE WITH THE LIMITED WARRANTY OF SECTION 6.2 IN WRITING TO CPANEL NO MORE THAN NINETY DAYS FOLLOWING DELIVERY OF THE SOFTWARE TO YOU.
Indemnification. You shall indemnify, defend and hold harmless cPanel and its directors, officers, staff, employees and agents and their respective successors, heirs and assigns and cPanel affiliates (and their its directors, officers, staff, employees and agents and their respective successors, heirs and assigns) (collectively, the “cPanel Parties”) from and against any liability, damage, loss or expense (including reasonable attorneys’ fees and expenses of litigation) incurred by or imposed upon the cPanel Parties or any one of them in connection with any claims, suits, actions, demands or judgments (“Claims”) related directly or indirectly to or arising out of (a) a breach of Your representations, warranties or obligations under this Agreement; (b) in the event that You sublicense the right to use the Software to any Third Party Users pursuant to Section 2.2 (Sublicensing), (i) a breach of a Third Party User’s representations, warranties or obligations under any provisions in a Third Party Agreement relating to cPanel or the Software; and (ii) any Claims based upon or arising from any allegation that a Third Party User was harmed due to any termination, suspension or disabling of such user’s access to the Software by cPanel pursuant to the terms and conditions of this Agreement; provided, however, that in any such case cPanel or its affiliates, as applicable, (x) provide You with prompt notice of any such claim; (y) permit You to assume and control the defense of such action upon Your written notice to cPanel of Your intention to indemnify; and (z) upon Your written request, and at no expense to cPanel or its affiliates, provide to You all available information and assistance reasonably necessary for You to defend such claim. You will not enter into any settlement or compromise of any such claim, which settlement or compromise would result in any liability to the cPanel Parties, without cPanel’s prior written consent, which will not unreasonably be withheld. You will pay any and all costs, damages, and expenses, including, but not limited to, reasonable attorneys’ fees and costs awarded against or otherwise incurred by cPanel or it affiliates in connection with or arising from any such claim.
Miscellaneous.
Force Majeure. No party will be liable for any failure or delay in performance of any of its obligations hereunder if such delay is due to acts of God, fires, flood, storm, explosions, earthquakes, general Internet outages, acts of war or terrorism, riots, insurrection or intervention of any government or authority; provided, however, that any such delay or failure will be remedied by such party as soon as reasonably possible. Upon the occurrence of a force majeure event, the party unable to perform will, if and as soon as possible, provide written notice to the other parties indicating that a force majeure event occurred and detailing how such force majeure event impacts the performance of its obligations.
Independent Contractors. It is the intention of the parties that cPanel and You are, and will be deemed to be, independent contractors with respect to the subject matter of this Agreement, and nothing contained in this Agreement will be deemed or construed in any manner whatsoever as creating any partnership, joint venture, employment, agency, fiduciary or other similar relationship between cPanel and You.
Choice of Law; Venue; Jurisdiction. This Agreement will be governed by and interpreted in accordance with the laws of the State of Texas without regard to the conflicts of laws principles thereof. Any dispute or claim arising out of or in connection with the Agreement shall be finally settled and exclusively by the state or federal courts located in Harris County, Texas. For purposes of this Agreement, You and cPanel hereby irrevocably consent to exclusive personal jurisdiction and venue in the federal and state courts in Harris County, Texas.
Entire Agreement. This Agreement, together with all Exhibits hereto, represents the entire agreement between the parties with respect to the subject matter hereof and thereof and will supersede all prior agreements and communications of the parties, oral or written.
Basis of Bargain. Section 6.2 (Limited Warranty), Section 7 (Limitations on Liability; Exclusive Remedies) and Section 8 (Indemnification) are fundamental elements of the basis of the agreement between cPanel and You and shall inure to the benefit of cPanel. cPanel would not be able to provide the Software on an economic basis without such limitations.
Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability will not effect any other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained herein.
Amendment or Modification. This Agreement is subject to change without prior notice from cPanel. You shall be deemed to have accepted any changes or modifications by your continuing use of the Software. Additionally, this Agreement may not be amended, modified, or supplemented by You in any manner, except by an instrument in writing signed and agreed to by cPanel.
Assignment. This Agreement may not be assigned, transferred, delegated, sold or otherwise disposed of, including without limitation by operation of law, other than as expressly set forth in this Section 9.8. This Agreement may be assigned, transferred, delegated, sold or otherwise disposed of in its entirety: (a) by cPanel in its sole discretion; (b) by You with the prior written consent of cPanel; and (c) as set forth in Section 2.3 (Transfer of License). In addition, cPanel may delegate its performance under this Agreement in whole or in part to one or more affiliates, provided that cPanel will remain liable and responsible for any performance or obligation so delegated. A party’s permitted successors or assignees must agree as a condition precedent to any assignment, transfer or delegation to fully perform all applicable terms and conditions of this Agreement. No party may assign this Agreement to any entity that lacks sufficient assets and resources to continue to perform, to contractually required standards, all assigned obligations for the remainder of the Term. This Agreement will be binding upon and will inure to the benefit of a party’s permitted successors and assigns. Any purported assignment, transfer, delegation, sale or other disposition in contravention of this Section 9.8, including without limitation by operation of law, is null and void.
Waiver. Any of the provisions of this Agreement may be waived by the party entitled to the benefit thereof. No party will be deemed, by any act or omission, to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by the waiving party, and then only to the extent specifically set forth in such writing. A waiver with reference to one event will not be construed as continuing or as a bar to or waiver of any right or remedy as to a subsequent event.
Remedies Cumulative. Except as expressly set forth herein, no remedy conferred upon the parties by this Agreement is intended to be exclusive of any other remedy, and each and every such remedy will be cumulative and will be in addition to any other remedy given hereunder or now or hereafter existing at law or in equity.
No Third Party Beneficiaries. This Agreement is made for the benefit of the parties only, and this Agreement is not for the benefit of, and was not created for the benefit of, any third parties including, without limitation, any Third Party Users.
Notices. All notices or questions relating to this Agreement shall be directed to: cPanel, Inc., Attn: Legal Department, 3131 W. Alabama, Box 30, Houston, Texas 77098. Any notice required to be given under this Agreement shall be deemed given by cPanel when sent to You by email, telephone, fax, or mail to the contact information supplied by You to cPanel in the Pricing and Term Agreement. You may update such information from time to time upon written notice to cPanel at the address in this Section 9.12. Any failure by You to provide cPanel with updated contact information will not invalidate the effectiveness of any notice sent by cPanel to the contact information previously supplied by You.
Notice to U.S. Government Users. The Software and any associated documentation are “Commercial Items,” as that term is defined at 48 C.F.R. 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. 12.212 or 48 C.F.R. 227.7202, as applicable. Consistent with 48 C.F.R. 12.212 or 48 C.F.R. 227.7202–1 through 227.7202–4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
Third-Party Software. The Software contains third-party software the use of which requires Your agreement to additional terms and conditions with respect to such third-party software. The terms and conditions for such third party software are located in their respective source files at /usr/local/cpanel/src/3rdparty/ arranged by license type.
Export Controls. The parties agree to comply fully with all Applicable Laws of the United States, or of any foreign government to or from where a party is shipping, to in connection with the import, export or re-export, directly or indirectly, of the Software in connection with this Agreement.
Time-Limited Claims. Regardless of any Applicable Law to the contrary, You agree that any claim or cause of action arising out of or related to the Software or this Agreement, must be filed within one year after such claim or cause of action arose or be forever barred.
2012–03.v01.EULACPWHM
03–26–2012