(1) Disclaimer of Warranties / Limitation of Liability
(a) The Service is provided “as is” and our exposure to you is limited.
Advanced WP SPECIFICALLY DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. THIS INCLUDES LOSS OF DATA RESULTING FROM DELAYS, NO DELIVERIES, WRONG DELIVERY, AND ANY AND ALL SERVICE INTERRUPTIONS CAUSED BY PROVIDER AND PROVIDER DOES NOT WARRANT THAT THE SERVICE OFFERED OR PROVIDED BY PROVIDER IS FREE OF BUGS, ERRORS, DEFECTS, VIRUSES OR DEFICIENCIES. IN NO EVENT SHALL PROVIDER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL OR INCIDENTAL DAMAGES, EVEN IF PROVIDER HAS BEEN ADVISED BY CUSTOMER OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. IF PROVIDER’S SERVICE TO CUSTOMER IS DISRUPTED OR MALFUNCTIONS FOR ANY REASON, PROVIDER SHALL NOT BE RESPONSIBLE FOR LOSS OF INCOME DUE TO DISRUPTION OF SERVICE, BEYOND FEES PAID BY CUSTOMER TO PROVIDER FOR SERVICE, DURING THE PERIOD OF DISRUPTION OR MALFUNCTION. YOUR SOLE AND EXCLUSIVE REMEDY FOR DEFECTS IN THE SERVICE IS AS SET FORTH IN THIS SECTION OR IN THE SPECIFIC SERVICE LEVEL AGREEMENT, IF ANY, APPLICABLE TO THE SERVICE YOU ARE USING.
Advanced WP’S SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. Advanced WP SHALL NOT BE LIABLE FOR ANY DAMAGES YOU OR ANY OTHER PERSON MAY SUFFER. NOTWITHSTANDING THE FOREGOING, YOU AGREE THAT IN NO EVENT WILL Advanced WP BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DIRECT, INCIDENTAL, PUNITIVE OR OTHER CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS AND DAMAGES RELATED TO CORRUPTION OR DELETION OF Advanced WP’S SERVICE) ARISING OUT OF OR IN RELATION TO THIS AGREEMENT OR YOUR USE OR INABILITY TO USE THE SERVICE (INCLUDING, BUT NOT LIMITED TO, INOPERABILITY OF Advanced WP’S SERVERS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF Advanced WP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS INCLUDES BUT IS NOT LIMITED TO ANY LOSS THAT MAY OCCUR DUE TO ANY LOSS OF THE WEB HOSTING SERVICE, THE USE OF WEB HOSTING SERVICE, ACCESS DELAYS OR ACCESS INTERRUPTIONS TO Advanced WP’S WEB HOSTING SERVICE SYSTEM, THE NON-DELIVERY OR MISDELIVERY OF DATA BETWEEN YOU AND Advanced WP, EVENTS BEYOND Advanced WP’S REASONABLE CONTROL, THE NON-RECOGNITION OF THE Advanced WP WEB HOSTING SERVERS, THE PROCESSING OF YOUR APPLICATION, THE PROCESSING OF ANY MODIFICATION TO THE RECORD ASSOCIATED WITH YOUR WEB HOSTING SERVICE, THE FAILURE OF YOU OR YOUR AGENT TO PAY ANY FEES HEREUNDER, THE PROTECTION OR PRIVACY OF ELECTRONIC MAIL OR OTHER INFORMATION TRANSFERRED THROUGH THE INTERNET OR ANY OTHER NETWORK PROVIDER OR SERVICE ITS CUSTOMERS MAY UTILIZE, OR THE APPLICATION OF ANY POLICY SET FORTH HEREIN.
IN NO EVENT SHALL Advanced WP’S MAXIMUM LIABILITY EXCEED THE TOTAL AMOUNT PAID BY YOU TO Advanced WP FOR THE SERVICE DURING THE PRIOR TWELVE MONTHS, OR $500, WHICHEVER IS LESS. TO THE EXTENT APPLICABLE STATE LAW DOES NOT ALLOW THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, Advanced WP’S LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.
(2) Availability of Service
(a) You understand and agree that interruptions of Service may occur due to scheduled or emergency maintenance, updates and repair by Advanced WP, or by strikes, riots, vandalism, fires, inclement weather, third-party provider outages, cable cuts, power crisis shortages, acts of terrorism, and or uncontrollable acts of God, or other causes beyond Advanced WP’s control, as defined by standard practices in the industry. From time-to-time, it may become necessary for Advanced WP to stop, reboot, disable, reconfigure, re-route or otherwise interrupt the Service for indeterminate and unpredictable lengths of time. You agree that under no circumstances will Advanced WP be held liable for any financial or other damages due to such interruptions. In no event shall Advanced WP be liable to you or any other person or party for any special, incidental, consequential or punitive damages of any kind, including, without limitation, refunds of fees, loss of profits, loss of income or cost of replacement services. Such failure or delay shall not constitute a default under this Agreement.
(b) Advanced WP reserves the right to reset the password used to access a Service and Account, if, in our judgment, the current password is unsecure or not current. We may also reset the password used to access a Service or Account in connection with any security audit required by our data centers or any other third party with whom we contract to provide the Service.
(c) In our sole discretion, we may limit or otherwise restrict the amount of bandwidth, disk space or storage space available to you. We may also limit or restrict the Service in adherence to any new governmental regulations or policies that may arise, either domestically or internationally.
(d) We reserve the right to refuse service. Notwithstanding the foregoing, we reserve the right to refuse access to the Service to anyone, at anytime, for any reason or no reason.
(e) From time to time, it may be necessary for us to update certain software, applications and/or the Service without prior notice. An example of a needed update is an update from one version of PHP to another. The updated version may not be compatible with your Content and/or website(s), and your Content and/or website(s) may cease to function as expected following the update. In most all cases, we are unable to rollback or otherwise reverse the update. You are solely responsible for adjusting your Content and website(s) to and ensuring compatibility with the updated version and you agree that Advanced WP shall not be liable in any way for any loss or damage you or any other person or party may suffer as a result of our update to certain software, applications and/or the Service.
(a) Customer agrees to defend, indemnify and hold Advanced WP and its affiliates, directors, officers, agents and employees harmless from and against any and all claims, obligations, losses, damages, costs, liabilities and expenses (including reasonable attorneys’ fees and costs) incurred by Advanced WP arising from or due to any claim, action, dispute or demand made by any third parties (including customers of Customer) that are related to or arising out of your use of the Service or from your placement or transmission of any materials or Content onto Advanced WP’s servers. Such liabilities may include, but are not limited to: (a) false advertising claims against Customer (or customers of Customer), (b) liability claims for products or services sold by Customer (or Customer’s customers), (c) infringement or misappropriation of intellectual property rights, (d) violation of rights of publicity or privacy, defamation, libel, slander obscenity, or child pornography, (e) spamming or any other offensive or harassing or illegal conduct (including but not limited to any violation of our acceptable use policy, as set forth in this Agreement), or (f) any other damage arising from your equipment, your business, or your use of the Service.
(b) Advanced WP agrees to indemnify, defend and hold harmless Customer and its affiliates, directors, officers, agents and employees (collectively, the “Customer Group”) from and against any and all claims, obligations, losses, damages, costs, liabilities and expenses (including reasonable attorneys’ fees and costs) incurred by Customer Group arising from or due to any claim, action, dispute or demand (or any member thereof) to the extent arising from (i) any personal injury, death or physical damage to, or loss or theft of, tangible personal property caused by the gross negligence or willful misconduct of Advanced WP or its employees, agents or subcontractors, or (ii) infringement of any U.S. patent, copyright or other proprietary right resulting from Customer’s use of intellectual property solely developed or wholly owned by Advanced WP and used to provide the Service; provided, however, that, in addition to the foregoing indemnification, Advanced WP’s sole and exclusive liability with respect to this Section (K)(3)(b), and Customer’s sole and exclusive remedy with respect to this Section (K)(3)(b), is limited to Advanced WP making the Service non-infringing or arranging for Customer’s continued use of the Service by license or otherwise, but if either of the foregoing options are commercially impracticable for Advanced WP, in Advanced WP’s sole discretion, upon written notice to Customer, Advanced WP may cancel the directly affected Service, refund to Customer any prepaid fees for such cancelled Service and, if applicable, adjust Customer’s ongoing monthly fees for the continuing Service to account for such cancelled Service. Notwithstanding anything to the contrary in this Section (K)(3)(b), Advanced WP will have no indemnification obligation to Customer under this Section (K)(3)(b) for any infringement arising from (A) an unauthorized modification of the Service by Customer, (B) Customer’s combination of the Service with any intellectual property not developed or owned by Advanced WP if the Service would have avoided the infringement but for such combination by Customer, or (C) Customer’s failure to install updates, patches or other similar items provided by Advanced WP or the licensor of the intellectual property that is the subject of such a claim.
(4) Force Majeure
(a) Advanced WP shall not be liable to Customer or any other person, firm or entity for any failure of performance under this Agreement if such failure is due to any cause or causes including, but not limited to strikes, riots, vandalism, fires, inclement weather, third-party provider outages, cable cuts, power crisis shortages, acts of terrorism, and or uncontrollable acts of God, or other similar occurrences; any law, order, regulation, direction, action or request of the United States government or of any other government (including state and local governmental agency, department, commission, court, bureau, corporation or other instrumentality of any one or more of said governments) or of any civil or military authority; national emergencies, insurrections, wars; or lockouts, or work stoppages or other labor difficulties; failures, shortages, breaches or delays.
(M) DISCONTINUED SERVICES
(1) End of Life Policy
Advanced WP reserves the right to cease offering or providing any of the Services, or any third-party services that our products or services are based or relied upon, at any time, for any or no reason, and without prior notice. Although Advanced WP makes great effort to maximize the lifespan of all its Services, there are times when a Service we offer will be discontinued or reach its End-of-Life (“EOL”). If that is the case, that product or service will no longer be supported by Advanced WP, in any way, effective on the EOL date. Advanced WP shall not be liable to you or any third party for any modification, suspension, or discontinuance of any of the products, and services, or any third-party services that our products or services are based or relied upon.
(2) Notice and Migration
In the event that any Service, or any third-party services that our products or services are based or relied upon, has reached or will reach EOL, it is your responsibility to take all necessary steps to replace the Service by migrating to a new Service before the EOL date, or by entirely ceasing reliance on said Service before the EOL date. In either case, Advanced WP will either offer a comparable Service for you to migrate to for the remainder of the term of your purchase, a prorated in-store credit, or a prorated refund, to be determined by Advanced WP in its sole and absolute discretion. Advanced WP may, with or without notice to you, migrate you to the most up-to-date version of the Service, if available. You agree to take full responsibility for any and all loss or damage arising from any such migration.
(3) No Liability
Advanced WP will not be liable to you or any third party for any modification, suspension, or discontinuance of any of the Services we may offer or facilitate access to.