These WordPress VIP Terms of Service (“TOS”) and the Order Form in which they are referenced (together, the “Agreement”) shall govern Customer’s use of the Services. By executing an order form referencing the TOS (“Order Form”), WPVIP Inc. (“WPVIP”) and Customer agree to be bound by both the TOS and the Order Form. As used in the TOS, “Customer” means the entity identified as such in the Order Form. WPVIP and Customer agrees as follows:

1. Order Forms.  Subject to the terms of the Agreement, WPVIP will provide Customer the services (“Services”) described in the Order Form. 
2. Security. Customer is responsible for maintaining the confidentiality of the user names and passwords it uses to log into its WPVIP accounts. Customer is responsible for all actions taken using its user names and passwords. Customer must immediately notify WPVIP if Customer becomes aware of any unauthorized access to or use of its WPVIP accounts or its websites hosted by WPVIP (“Sites”).  WPVIP shall implement and maintain appropriate technical and organizational measures that are designed to protect its systems from unauthorized access.
3. Content. As between Customer and WPVIP, Customer owns all content that appears on its Sites or is otherwise submitted by Customer to WPVIP. Customer is responsible for all actions taken on its Sites (other than any actions taken by WPVIP) and all text, pictures, videos, files, software and other material published or posted on the Sites (“Content”). Customer is responsible for any harm resulting from the Content. Customer grants WPVIP a worldwide, royalty-free, non-exclusive license to use, process, store, modify, display, and distribute the Content solely as necessary to provide the Services. Customer agrees that its Content will also be made available in the WordPress.com Reader if Customer chooses to use that feature of the Services.
4. Restrictions. Customer shall not use the Services in a manner that places an excessive burden on WPVIP’s network or systems or significantly exceeds the usage demands of similarly situated customers. Customer shall not perform any vulnerability or penetration testing of WPVIP’s network or systems (including Customer’s VIP hosted application) without WPVIP’s prior written approval. Customer shall not try to circumvent any security or authentication measures protecting the Services.
5. Proprietary Rights; Feedback. WPVIP owns and retains all right, title and interest, including all intellectual property rights, in and to the Services including the Parse.ly Code. WPVIP may use all comments and suggestions furnished by Customer to WPVIP with respect to the Services. Customer assigns to WPVIP all right, title and interest in and to such feedback.   
6. Parse.ly Services. Sections 6 through 9 apply only to the Parse.ly Services. For clarity, the Parse.ly Services are a part of the Services.
7. Parse.ly Definitions
   1. “Analytics Data” means data collected by Customer from the Monitored Domains and Applications using the Parse.ly Code which is then provided to WPVIP and used to provide the Parse.ly Services. 
   2. “Documentation” means the Parse.ly user guides and support material made available by WPVIP.
   3. “Monitored Domains and Applications” means the Customer domains and applications for which WPVIP will provide the Parse.ly Services. 
   4. “Parse.ly Code” means WPVIP’s proprietary tracking code that is installed on the Monitored Domains and Applications for the purpose of collecting Analytics Data, together with any related fixes, updates, and upgrades provided by WPVIP.
   5. “Parse.ly Services” means the Parse.ly content analytics service provided by WPVIP.
8. Analytics Data. Customer owns the Analytics Data; provided, however that WPVIP shall be permitted to use such data to provide the Parse.ly Services to Customer and improve the Parse.ly Services in general. WPVIP shall also be permitted to use the Analytics Data in an aggregated and anonymized manner to create and publicly share reports and analysis regarding internet traffic trends. WPVIP shall not identify Customer in any such reports or analysis. 
9. Parse.ly Code. Customer shall comply with all reasonable WPVIP requests necessary for its operation of the Parse.ly Services. Customer shall include the Parse.ly Code on each page of the Monitored Domains, integrate the Parse.ly Code into the Monitored Applications, and make the Analytics Data available to WPVIP using one of the methods WPVIP designates. WPVIP grants to Customer during the Term a limited, non-exclusive, non-transferable license to install, copy, and use the Parse.ly Code solely in conformance with the Documentation and solely as necessary to operate the Parse.ly Services. Customer shall not, nor will it permit anyone else to: (a) adapt, alter, modify, improve, translate, or create derivative works of the Parse.ly Code or the Parse.ly Services; (b) attempt to access or download the technology used by WPVIP to provide the Parse.ly Services (other than the Parse.ly Code as provided by WPVIP for Customer to use the Parse.ly Services) or reverse engineer, decompile, disassemble, or otherwise attempt to reconstruct or obtain the source code to all or any portion of the Parse.ly Services; (c) provide any third party access to the Parse.ly Services or use the Parse.ly Services on behalf of any third party, including as part of a time-sharing, outsourcing or service bureau environment; (d) remove any proprietary notices or labels in reports and other documents provided by WPVIP; or (e) use the Parse.ly Services in any manner detrimental to WPVIP including for the purpose of creating or improving any services or technology that perform functions similar to, or are competitive with, the Parse.ly Services.
10. Customer Warranties. Customer represents, warrants and covenants that:
    1. its use of the Services will be in accordance with this Agreement, the Order Form and all applicable laws and regulations;
    2. the Content will not infringe upon or violate the rights (including intellectual property rights) of any third party;
    3. neither the Content nor any other file Customer sends to WPVIP will contain or install any viruses, worms, malware, Trojan horses or other harmful or destructive content;
    4. the Content is not spam and does not contain unethical or unwanted commercial content designed to drive traffic to third party sites, boost the search engine rankings of third-party sites, commit further unlawful acts (such as phishing) or mislead recipients as to the source of the material (such as spoofing);
    5. the Content is not illegal, harmful, offensive or sexually explicit and does not contain threats of violence;
    6. it has not assigned keywords to its Sites in a misleading or unlawful manner, including in a manner intended to trade on the name or reputation of others, it being understood that WPVIP may change or remove any description or keyword that it considers inappropriate or unlawful, or that may otherwise cause harm to WPVIP; and
    7. None of Customer’s Sites are directed to children under the age of 13 (as defined by COPPA).

Without limiting any of the foregoing representations or warranties, WPVIP has the right (though not the obligation) to remove Content from a Site, or suspend or terminate Customer’s use of the Services, to prevent harm to WPVIP or its systems. WPVIP shall promptly notify Customer of any such actions.

11. Customer Privacy Requirements.  Customer shall comply with all applicable laws in connection with the collection, use and sharing of personal information via its Sites and the Monitored Domains and Applications. Customer shall provide all notices, and obtain all consents, as required under applicable law in connection with the collection, use, and disclosure of personal information via its Sites and the Monitored Domains and Applications. Customer shall post a privacy policy that complies with applicable law on the Sites and Monitored Domains and Applications and comply with such privacy policy.
12. Copyright and DMCA Policy. If WPVIP receives a notification of copyright infringement pertaining to the Sites under Automattic’s Digital Millennium Copyright Act (“DMCA”) Policy (located at  https://automattic.com/dmca-notice/) or otherwise, WPVIP will send such notification to Customer (“DMCA Notification”). Customer will be responsible for taking action with respect to each DMCA Notification within 48 hours by either (a) removing the allegedly infringing Content or (b) determining that the Content at issue is not infringing, notifying WPVIP of the same, and taking sole responsibility for the continued publication of such Content.
13. Fees and Payment. As consideration for the Services, Customer shall pay WPVIP the fees set forth in the applicable Order Form. WPVIP shall invoice Customer per the schedule set forth in the Order Form and all invoices shall be due and payable within thirty days of receipt of invoice. All payments shall be made in the currency specified on the Order Form. Any payments more than thirty days overdue will accrue interest until paid at a rate of 1.5% per month, or if lower, the maximum rate allowed by law. WPVIP reserves the right to suspend its provision of all or part of the Services if Customer fails to timely pay any undisputed amounts due to WPVIP under this Agreement until such amounts have been paid; provided however that WPVIP shall provide no less than 10 days prior written notice of any such suspension. Customer shall be responsible for all applicable taxes (e.g. sales tax, VAT, GST) imposed by any governmental authority relating to the purchase of the Services (except for any taxes based on WPVIP’s income).
14. Uptime SLA. WPVIP will issue service credits to Customer if WPVIP fails to meet the Uptime SLA in accordance with the WordPress VIP Platform — Service Level Agreement located at https://wpvip.com/platform-sla/. These service credits are Customer’s sole and exclusive remedy for WPVIP’s failure to meet the Uptime SLA.
15. Termination.  Either party may terminate this Agreement by written notice to the other party if the other party materially breaches this Agreement and does not cure such breach within thirty days of receipt of written notice of such breach. 
16. WPVIP Warranties; Disclaimer. WPVIP represents and warrants that it will (a) perform the Services in a timely, professional and workmanlike manner, and (b) comply with all applicable laws in connection with the performance of the Services. Other than the warranties set forth in the previous sentence, all Services are provided “as is” and without warranty of any kind, including, without limitation, any warranty of merchantability, fitness for a particular purpose or non-infringement, all of which are hereby expressly disclaimed. WPVIP also does not warrant results, freedom from bugs or uninterrupted use. WPVIP will not be liable for delays, interruptions, service failures or other problems inherent in use of the internet and electronic communications or other systems outside its reasonable control.
17. Indemnification. 
    1. By Customer. Customer agrees to indemnify, defend and hold harmless WPVIP and its affiliates, vendors, and licensors, and its and their respective directors, officers, employees and agents from and against any and all third party claims, and all damages, costs, fines and other expenses arising out of such claims (including reasonable attorneys’ fees), to the extent the claim arises out of (i) Customer’s use of the Services, (ii) Customer’s breach of this Agreement or an Order Form, or (iii) the Content, including for any actions Customer takes or fails to take with respect to a DMCA Notification.
    2. By WPVIP. WPVIP agrees to indemnify, defend and hold harmless Customer and its affiliates, and its and their respective directors, officers, employees and agents from and against any and all third party claims, and all damages, costs, fines and other expenses arising out of such claims (including reasonable attorneys’ fees), to the extent the claim alleges that the Services infringe or misappropriate any U.S. patent or copyright (each, an “Infringement Claim”). In the event of any such Infringement Claim, WPVIP may, at its option: (i) obtain a license to permit Customer to continue using the Services; (ii) modify or replace the relevant portion of the Services with a non-infringing alternative having substantially equivalent performance within a reasonable period of time; or (iii) terminate this Agreement by providing notice to Customer, and provide Customer with a pro rata refund of any unearned fees prepaid by Customer. Notwithstanding the foregoing, WPVIP will have no liability for any Infringement Claim to the extent that it results from or relates to: (1) modifications to the Services made by a party other than WPVIP or its agents; (2) the combination, operation or use of the Services with equipment, devices, data or software not provided by WPVIP; (3) Customer’s failure to use updated or modified versions of the Services provided by WPVIP to avoid a claim; (4) WPVIP’s compliance with any specifications or requirements provided by Customer; (5) Customer’s use of the Services other than in accordance with this Agreement; or (6) third party or open source software, including the open source WordPress product available at http://wordpress.org. The indemnification obligations set forth in this section are WPVIP’s sole and exclusive obligations (and Customer’s sole and exclusive remedies) with respect to claims that the Services infringe or misappropriate any third party’s intellectual property rights.
    3. Indemnification Procedure. A party seeking indemnification hereunder shall promptly notify the indemnifying party in writing of any claim for which indemnification is sought (provided that any failure to provide prompt notification shall not relieve the indemnifying party of its indemnification obligations unless such failure results in material prejudice to such party), grant the indemnifying party the option to assume sole control of the defense and settlement of the claim, and provide the indemnifying party, at its expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim.  

18. Limitation of Liability.  Neither WPVIP nor any of its vendors or licensors shall be liable to Customer with respect to the subject matter of this Agreement, whether in contract, tort or otherwise, for (a) any amounts in excess of the aggregate fees paid by Customer to WPVIP hereunder during the six month periodimmediately prior to the event giving rise to such liability; (b) any incidental, consequential or punitive damages even if it has been advised of the possibility of such damages; (c) any cost of procurement of substitute goods or services; or (d) loss of use, data, revenue, profits, savings, or goodwill. The parties agree that this section represents a reasonable allocation of risk and that they would not proceed in the absence of such allocation.  
19. Publicity. WPVIP may identify Customer as a WordPress VIP customer in WPVIP’s marketing materials.
20. Confidentiality. “Confidential Information” means all information, in any form, furnished or made available by one party (“Disclosing Party”) to the other party (“Receiving Party”) that is designated by the Disclosing Party as proprietary or confidential or should reasonably be understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. Each party shall take no less than commercially reasonable measures to protect the other party’s Confidential Information from unauthorized disclosure. Receiving Party shall not disclose Confidential Information to third parties except as permitted below or use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. Notwithstanding the foregoing, Receiving Party may disclose Confidential Information to its affiliates, employees, agents, contractors and other representatives (“Representatives”) having a legitimate need to know such information, provided that they are bound by confidentiality obligations no less protective of Disclosing Party than those set forth herein. Each party will be responsible for the acts and omissions of its Representatives with respect to Confidential Information. The provisions of this Section will not apply to Confidential Information that: (a) is or becomes publicly available or enters the public domain through no fault of Receiving Party; (b) is already known by Receiving Party without any confidentiality obligations at the time of disclosure; (c) Receiving Party received from a third party without breach of confidentiality obligations; or (d) is independently developed by Receiving Party without use of or reference to Disclosing Party’s Confidential Information. Receiving Party may disclose Confidential Information to the limited extent required to comply with law, regulation or court order provided it notifies Disclosing Party in advance (if permitted by law) and cooperates, at Disclosing Party’s expense, in any reasonable effort to obtain confidential treatment. 
21. Miscellaneous. 
    1. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. 
    2. Neither party may assign this Agreement in whole or in part except in connection with a merger, reorganization or sale of the business in which case the assigning party shall provide prompt written notice of such assignment to the other party.  
    3. The provisions hereof are for the benefit of the parties only and not for any other person or entity. No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any partial exercise of any right or power hereunder preclude further exercise. 
    4. The Services provided under this Agreement may allow Customer to download, access or use third-party software or services (“Third-Party Services”) including WordPress plugins, themes, or other software applications. The Third-Party Services are provided by third parties independently of the Services and WPVIP is not responsible for the Third-Party Services. Customer shall comply with the applicable terms of use for any Third-Party Services it chooses to use. 
    5. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect. 
    6. This Agreement shall be deemed to have been made in, and shall be construed pursuant to, the laws of the State of California and the United States without regard to conflicts of laws provisions thereof. Any dispute, controversy or claim arising out of or relating to this Agreement will be made exclusively in the state or federal courts located in San Francisco, California, and the parties hereby submit to the jurisdiction and venue of such courts. 
    7. This Agreement (including any other documents referenced in this Agreement) and the Order Forms are the complete and exclusive statement of the mutual understanding of the parties, and supersedes and cancels all previous written and oral agreements and communications, relating to the subject matter hereof. Any pre-printed or standard terms of any purchase order, confirmation, or similar form, even if signed by the parties after the effectiveness hereof, shall have no force or effect. 
    8. This Agreement may only be amended in a writing signed by both parties. 
    9. The substantially prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.  
    10. Any provisions which by their nature should survive termination or expiration of this Agreement will survive, including Sections 3, 5, 8, 11, 13, and 15-21.
    11. All notices must be in English, in writing and sent by email to the address indicated below. Notice will be treated as given on receipt, as verified by electronic log.
        
        If to WPVIP: contracts@wpvip.com
        
        If to Customer: to the address noted in the Order Form
    12. Other than with respect to payment obligations, neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement or any Order Form if the delay or failure is due to events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, spread of communicable disease, power outage, or failure of telecommunications or data networks or services.
    13. Each person signing this Agreement below represents and warrants that they are duly authorized to do so on behalf of the party for whom they are signing.

Last updated: May 17, 2024