Overview Privacy Policy Terms of Service

WHMCS Marketplace Terms of Service

30th June 2023: Terms of Service Update
We recently made some changes to the Marketplace Terms of Service. These changes were made in conjunction with the launch of new products from 360 Monitoring that are now available via MarketConnect. We made the following changes:
  1. Added the 360 Monitoring Subscriber Agreement
If you have any questions about these changes, feel free to email us at the legal contact address contained within the Terms of Service.
  1. 1. Definitions.
    1. 1.1 “Agreement” means this WHMCS Marketplace Terms of Service agreement, as well as the WHMCS EULA and Privacy Policy (defined below), which is incorporated herein by reference.
    2. 1.2 “Applicable Law” means applicable international, federal, state or local laws, statutes, ordinances, regulations or court orders.
    3. 1.3 “Effective Date” means the initial purchase date for the first Product you purchase, license or otherwise procure from the WHMCS Marketplace (as defined below).
    4. 1.4. “End User Data” means Your data, that of Your customers, or that data transmitted by the Product. It excludes data collected by WHMCS to provision, charge for, or distribute the Products.
    5. 1.5 “EULA” means the WHMCS End-User License Agreement, as amended from time to time by WHMCS. Any capitalized terms not defined herein shall have the meaning attributed to them by the EULA. The EULA is available at: https://www.whmcs.com/license/
    6. 1.6 “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.
    7. 1.7 “Product” means the services, products, and/or software program(s) supplied by third party Vendors (as defined below) and available via the WHMCS Marketplace, together with all corresponding documentation, instructions, user interfaces (including, without limitation, any web-based interfaces), printed materials and online or electronic documentation.
    8. 1.8 “Subscriber Agreements” means all Vendor agreements and policies associated with the purchase and/or use of such Products available via the WHMCS Marketplace, which are incorporated herein by reference, and include, without limitation, the agreements listed in the attached Schedule of Subscriber Agreements.
    9. 1.9 “Term” is defined in Section 5.1 (Term).
    10. 1.10 “Territory” means the world, except to the extent that use or distribution of the Product in certain countries or regions would cause either party to violate Section 9.13 (Export Controls).
    11. 1.11 “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 WHMCS and Vendors, including without limitation, WHMCS and the WHMCS logo. WHMCS may add to the foregoing nonexclusive list of Trademarks in its sole discretion from time to time.
    12. 1.12 “Updates” means any bug fixes, patches and other modifications of the Product provided to you by WHMCS or a Vendor.
    13. 1.13 “Vendor” means the owner or licensor (which may be WHMCS or a third party provider) of Products available via WHMCS MarketConnect or in the WHMCS Marketplace.
    14. 1.14 “You” or “Your” means or refers to the individual or entity purchasing, installing and/or using a Product and thereby entering into this Agreement with WHMCS, whether or not such terms are capitalized in this Agreement.
    15. 1.15 “WHMCS” means WHMCS, LLC, and its parents and subsidiaries. However, when referring to the WHMCS EULA, WHMCS Service Level Agreement, or any agreements other than this Agreement or “WHMCS IP,” “WHMCS” shall mean WHMCS, Ltd.
    16. 1.16 “WHMCS MarketConnect” is a platform offered by WHMCS through which you may purchase, license or otherwise procure Products from Vendors.
    17. 1.17 “WHMCS Marketplace” means the online portal provided by WHMCS where you can review and purchase offered Products.
  2. 2. License.
    1. 2.1 License Grant. During the Term, solely within the Territory and subject to the terms and conditions of this Agreement, WHMCS grants you a limited, non-exclusive, license to install and use the Product, subject to the applicable Subscriber Agreement. The foregoing license is revocable, non-transferable and non-assignable. Without limiting the above, you may obtain a license to use a Product on behalf of a customer (“Sublicensee”). In such instances, “you,” as used in this Agreement, shall also apply to your Sublicensee, and such sublicense is subject to Section 2.3, below, and all other terms of this Agreement.
    2. 2.2 License Transfers. The Product is licensed only to you (or your Sublicensee, but not both, unless you are purchasing multiple licenses for the Product). You may not rent, lease, sub-license, sell, assign, pledge, transfer or otherwise dispose of the Product, on a temporary or permanent basis, without the prior written consent of WHMCS. For the avoidance of doubt, this license is only granted to one person or company and if more than one person or company wishes to use the Product, each user must purchase a separate license.
    3. 2.3. Flow Down of License Terms to Sublicensee. You are responsible to WHMCS and the Vendor of the Product for any unauthorized installation, use, copying, access or distribution of the Product and/or redistribution of the Product. You also agree to: (a) include in your Sublicensee agreements, terms and conditions that are similar to but no less restrictive than the license terms and other terms required by this Agreement and in any Subscriber Agreement provided by the Vendor of the Product; and (b) require your Sublicensee to include in their customer agreements, terms and conditions that are substantially similar to but no less restrictive than the license terms and other terms required by this Agreement.
    4. 2.4 Your use of the Product may be governed by Subscriber Agreements you must accept. Depending on the nature of the Product, these Subscriber Agreements may not be listed on this Agreement’s “Schedule of Subscriber Agreements.” It is important that you read those terms carefully before accepting them, and you agree that you will do so.
    5. 2.5 The use of products or services provided by Open-Xchange or "OX" may not be used for any purpose or in any manner that involves Protected Health Information as that term is defined in the Health Insurance Portability and Accountability Act of 1996, as amended.
  3. 3. Intellectual Property Rights.
    1. 3.1 Ownership. WHMCS owns all right, title and interest in and to the WHMCS IP Rights, as defined by the WHMCS EULA. All other Intellectual Property Rights related to the Products are owned by their respective owners (collectively, “Vendor IP Rights”). Your purchase, installation and/or use of a Product will be subject to this Agreement and the Subscriber Agreements for such Products (e.g., EULA, privacy policies, etc.) which may have different and/or additional terms than this Agreement.
    2. 3.2 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 WHMCS IP Rights or Vendor IP Rights.
    3. 3.3 No Contest. You acknowledge and agree that the WHMCS IP Rights are and shall remain the sole and exclusive property of WHMCS. You agree that you shall never oppose, seek to cancel, or otherwise contest WHMCS’s ownership of the WHMCS IP Rights or act in any manner that would or might conflict with or compromise WHMCS’s ownership of the WHMCS IP Rights, or similarly affect the value of the WHMCS IP Rights. Whenever requested by WHMCS, you shall execute such documents as WHMCS may deem necessary or appropriate to confirm, maintain or perfect WHMCS’s ownership of the WHMCS IP Rights. In the event WHMCS is unable, after using its reasonable endeavors (which shall not require WHMCS to incur any costs), to secure your signature on any document or documents needed to apply for or to confirm, maintain or perfect WHMCS’s ownership of the WHMCS IP Rights for any other reason whatsoever, you hereby irrevocably designate and appoint WHMCS 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 WHMCS’s ownership of the WHMCS 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 WHMCS IP Rights, you agree to notify WHMCS of such fact in writing as soon as reasonably possible.
    4. 3.4 Proprietary Notices. Third party trademarks, trade names, product names and logos included in the Products are the trademarks or registered trademarks of their respective owners and/or licensors. You may not remove or alter any trademark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in the Products.
    5. 3.5 Submissions. With respect to any feedback, suggestions or ideas (“Submissions”) that you submit to WHMCS concerning the Products, or any of WHMCS’s products or services, you agree that: (a) your Submissions will automatically become the property of WHMCS and considered WHMCS IP Rights, without any compensation to you; (b) WHMCS may use or redistribute the Submissions for any purpose and in any way; (c) WHMCS is not obligated to review any Submissions; and (d) WHMCS is not obligated to keep any Submissions confidential. In addition, any illegal, lewd, abusive, profane or otherwise disturbing submissions by you shall constitute a material breach of this Agreement.
  4. 4. Payments and Refunds.
    1. 4.1 Payments. As a condition of the license granted to you pursuant to this Agreement, you shall pay WHMCS the amount(s) set forth in the WHMCS MarketConnect for each Product in accordance with the payment terms contained therein.
    2. 4.2 Refunds. WHMCS shall not provide refunds under any circumstances. You must work directly with the Product Vendor to resolve any issues of Product failure or other claims, which may be governed by the Subscriber Agreement, and WHMCS will have no responsibility with respect to any such issues.
    3. 4.3 Credits and Payments.
      1. 4.3.1 You are required to purchase "Credits" to obtain all or certain Products offered in WHMCS MarketConnect. The Credits will be deposited in your WHMCS Marketplace account (Marketplace Account). You may purchase Credits using a credit card, Pay Pal or by wire transfer. Please contact WHMCS to arrange a wire transfer. You authorize WHMCS to debit your bank account or charge your PayPal account or credit card (as appropriate) to fund Credits that you purchase for the WHMCS Marketplace, from time to time, as well as for any recurring charges you agree to incur. WHMCS may, at its discretion, require that you pay for Credits using a particular payment means. Credits are non-refundable for any reason, and are not transferable without the consent of WHMCS, which may be denied for any reason. When you purchase Credits, your price for the Credits may also include certain costs, such as online taxes and a convenience fee established by WHMCS (currently set at 5%, subject to change at any time in WHMCS's sole discretion), which will not be reflected in your Credit total. For example, when you pay $100 toward the purchase of Credits with your credit card or PayPal account, you will be charged a convenience fee for online access, and in the event the convenience fee is 5%, and 95 Credits will be deposited into your Marketplace Account. Credits will not accrue interest, nor shall the creation of the Credits cause WHMCS to be liable or obligated, in any way, as a fiduciary or otherwise on behalf of you.
      2. 4.3.2 When a Product is purchased, either you or your Sublicensee will select your desired Product from WHMCS MarketConnect. You authorize WHMCS to deduct from your Credits any amounts owed by you to WHMCS as a result of such a purchase. WHMCS will pay the Product Vendor for your license to the Product. All Product purchases are subject to you having sufficient Credits for the purchase of the Product. Certain Products may require additional/ongoing Credits for continued access. You agree to maintain sufficient Credits in your Marketplace Account to ensure continued access. WHMCS is not responsible or liable in the event your Product access is terminated because of insufficient funds.
      3. 4.3.3 Any chargeback by PayPal or a credit card company or similar action by or through another payment provider relating to payment to WHMCS, for whatever reason, by you is: (a) a material breach of this Agreement; (b) an act for which you agree to be jointly and severally liable to make WHMCS whole; (c) an act with respect to which WHMCS will charge $35.00 per incident, in addition to merchant services fees and other payment provider service charges which may be charged to WHMCS; and (d) that the same shall be grounds for suspension and/or termination of this Agreement and access to the Products.
    4. 4.4 A Product may provide for purchases that are made directly in it (In App Purchases). WHMCS is not responsible for In App Purchases, and it is your responsibility to ensure that they meet your authorization requirements, or those of your End User.
  5. 5 Term, Termination and Support.
    1. 5.1 Term. This Agreement shall be effective on the Effective Date and shall automatically expire at the end of the Term, which shall be the earlier to occur of: (a) your discontinuance of use and deletion of all Products purchased through WHMCS MarketConnect, (b) breach by you of this Agreement, the EULA, or any Subscriber Agreement, or (c) the termination of our right to offer, or deprecation of, a Product or Products purchased through WHMCS MarketConnect.
    2. 5.2 Effect of Termination. Upon the expiration or termination of this Agreement for any reason, (a) you must discontinue all use of the Products; (b) you must destroy all copies of the Product, including any back-up copy; (c) you must uninstall or delete the Product from all machines and servers; and (d) WHMCS and/or the Vendor may, without notice and in its sole discretion, terminate, suspend or disable access to the Product by you. However, if you purchase a Product that has a term that extends past the expiration or termination, you will continue to have use of that Product for the remainder of the Product’s term, subject to the applicable license.
    3. 5.3 Upon suspension or termination for any reason, your ability, or that of your Sublicensee, to use the Product will cease. In addition to inability to access the Product, you or, if applicable, your Sublicensee, will have no access to the data you may have stored within the Product. If the license to use the Product is terminated, the data stored in the Product will be placed in the delete queue, however, it may not be deleted immediately. Regardless of whether data has been deleted by the Product Vendor, you or, if applicable, your Sublicensee, will have no access to this data following termination. Your rights with respect to your data will also be governed by the applicable Subscriber Agreement. Nevertheless, you understand and agree that a termination of your license to any Product may result in the loss of your data, and that WHMCS is not responsible, in any way, for any such data loss.
    4. 5.4 In addition to the above, in the event of Termination of this Agreement for any reason, WHMCS may, at its sole discretion and without notice, suspend your access to any and all of WHMCS Software (as defined by the WHMCS EULA) and related services.
    5. 5.5 You agree to contact the Vendor directly with any questions about the Product, or the terms of use of the Product. The Vendor is solely responsible for support of the Product. The Product is not subject to the WHMCS Service Level Agreement, if any.
    6. 5.5 Survival. Sections 1 (Definitions), 3 (Intellectual Property Rights), 4 (Credits and Payments), 5 (Term, Termination and Support), 6 (Warranties; Disclaimer), 7 (Limitation of Liability), 8 (Indemnification), 9 (Application of our Privacy Policy) and 10.1 to 10.6; and 10.8 to 10.14 (Miscellaneous) shall survive the termination or expiration of this Agreement for any reason.
  6. 6. Warranties; Disclaimer.
    1. 6.1 Mutual Warranties. Each party hereto 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 accession to 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 Product and the performance of its obligations under this Agreement.
    2. 6.2 Limited Warranty. WHMCS warrants that, for a period of 90 days from the date of your purchase, license or other acquisition of a Product, WHMCS has the right to license, sell, resell and/or market the Product to you. WHMCS makes no other warranties with respect to any Product. Any issues related to a Product must be resolved directly between you and the Vendor.
    3. 6.3 Disclaimers.
      1. 6.3.1 WHMCS HAS NO LIABILITY FOR ANY ACT OR OMISSION OF ANY VENDOR. EXCEPT AS SET FORTH IN THE LIMITED WARRANTY OF SECTION 6.2, THE PRODUCTS PROVIDED PURSUANT TO THIS AGREEMENT ARE PROVIDED "AS IS" AND WHMCS HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE PRODUCT, ITS THIRD PARTY COMPONENTS, AND ANY DATA ACCESSED THEREFROM, OR THE ACCURACY, TIMELINESS, COMPLETENESS, OR ADEQUACY OF THE PRODUCT, ITS THIRD PARTY COMPONENTS, AND ANY DATA ACCESSED THEREFROM, INCLUDING THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OPERATION ON A MOBILE DEVICE, AND NON-INFRINGEMENT. WHMCS DOES NOT WARRANT THAT THE PRODUCT OR ITS THIRD PARTY COMPONENTS ARE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. INSTALLATION OF THE PROCDUCT MAY AFFECT THE USABILITY OF THIRD PARTY DATA, INCLUDING, BUT NOT LIMITED TO, OTHER WHMCS PRODUCTS. IF THE PRODUCT, 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 WHMCS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DEFECTS OR DAMAGES.
      2. 6.3.2 IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE PRODUCT, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO 30 DAYS FROM THE DATE OF PURCHASE OF THE PRODUCT OR THE MINIMUM ALLOWED DURATION UNDER SUCH APPLICABLE LAW.
      3. 6.3.3 NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY WHMCS, ITS AFFILIATES, LICENSEES, DEALERS, VENDORS, SUB-LICENSORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED IN SECTION 6.2.
      4. 6.3.4 SOME JURISDICTIONS DO NOT ALLOW RESTRICTIONS ON IMPLIED WARRANTIES SO SOME OF THESE LIMITATIONS MAY NOT APPLY TO YOU.
  7. 7. Limitation of Liability.
    1. 7.1 Lost Profits; Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WHMCS 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 WHMCS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    2. 7.2 Total Cumulative Liability; Exclusive Remedy. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WHMCS’S AGGREGATE LIABILITY FOR DIRECT DAMAGES, UNDER THIS AGREEMENT (CUMULATIVELY) SHALL BE LIMITED TO THE FEES COLLECTED BY WHMCS UNDER THIS AGREEMENT FOR THE CALENDAR YEAR PRECEDING THE CLAIM; PROVIDED, HOWEVER, THAT FOR ANY BREACH OF THE LIMITED WARRANTY OF SECTION 6.2 YOUR SOLE AND EXCLUSIVE REMEDY AND WHMCS’S ENTIRE LIABILITY SHALL BE FOR WHMCS, AT WHMCS’S ELECTION AND WITHIN ITS SOLE DISCRETION, TO USE ITS COMMERCIALLY REASONABLE ENDEAVORS TO (A) SUPPLY YOU WITH A REPLACEMENT COPY OR COMMERCIALLY COMPARABLE SUBSTITUTE OF THE PRODUCT; OR (B) REINSTATE THE CREDITS YOU PAID FOR THE PRODUCT; PROVIDED, HOWEVER, THAT YOU REPORT ANY NON-COMPLIANCE WITH THE LIMITED WARRANTY OF SECTION 6.2 IN WRITING TO WHMCS NO MORE THAN 30 DAYS FOLLOWING PURCHASE OF THE PRODUCT.
  8. 8. Indemnification.
    1. 8.1 You shall indemnify, defend and hold harmless WHMCS and its directors, officers, staff, employees agents, and affiliates and their respective successors, heirs and assigns and affiliates (and their directors, officers, staff, employees and agents and their respective successors, heirs and assigns) (collectively, the “WHMCS Parties”) from and against any liability, damage, loss or expense (including reasonable lawyers’ fees and expenses of litigation) incurred by or imposed upon the WHMCS 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) a breach of a Vendor’s representations, warranties or obligations under any provisions in a Subscriber Agreement or otherwise relating to WHMCS or the Product; and (c) any Claims based upon or arising from any allegation that a third party was harmed due to any termination, suspension or disabling of such user’s access to the Products by WHMCS or Vendors; provided, however, that in any such case WHMCS 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 WHMCS of your intention to indemnify; and (z) upon your written request, and at no expense to WHMCS 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 WHMCS Parties, without WHMCS’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 lawyers’ fees and costs awarded against or otherwise incurred by WHMCS or its affiliates in connection with or arising from any such claim.
    2. 8.2 WHMCS shall indemnify, defend and hold harmless you and your directors, officers, staff, employees agents, and affiliates and their respective successors, heirs and assigns and your Sublicensees (and their directors, officers, staff, employees and agents and their respective successors, heirs and assigns) (collectively, the “User Parties”) from and against any liability, damage, loss or expense (including reasonable lawyers’ fees and expenses of litigation) incurred by or imposed upon the User 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 breach of WHMCS representations and warranties as provided in Section 6.2.
  9. 9. Application of our Privacy Policy.
    1. 9.1 This Agreement is covered by the Privacy Policy set out on the whmcs.com website (Privacy Policy). However, the following supersede anything in the Privacy Policy to the contrary:
    2. 9.1.1 WHMCS may release information concerning your use of WHMCS Marketplace and/or WHMCS MarketConnect when WHMCS believes such a release is necessary to comply with the law, to enforce this Agreement, for a Vendor to enforce a Subscriber Agreement, to compile statistical information about the use of the WHMCS Marketplace and/or WHMCS MarketConnect, for diagnostic purposes, to protect WHMCS’ rights or property, and/or to protect against fraudulent, abusive or unlawful use of the WHMCS Marketplace, WHMCS MarketConnect or the Products.
    3. 9.1.2 You understand and agree that the Products may transmit information outside the WHMCS Marketplace and/or WHMCS MarketConnect. You agree to seek consent from your End Users, or the owners and/or subjects of such information, to the transmission of this information outside WHMCS Marketplace and/or WHMCS MarketConnect. Where you are a business, company or similar organization, to the extent that WHMCS processes any personal data on your behalf in connection with the Agreement and (a) the personal data relates to individuals located in the EEA; or (b) you are located in the EEA, the parties agree that such personal data will be processed in accordance with the Data Processing Addendum set forth in Exhibit 1. For the purposes of this Section 9.1.2, the terms “personal data,” “process” and “EEA” have the meanings given in the Data Processing Addendum.
    4. 9.1.3 WHMCS reserves the right to gather data on key usage including, but not limited to, license key numbers, server IP addresses, server hardware, and other information deemed relevant, to ensure that WHMCS Marketplace, WHMCS MarketConnect and/or the Product is being used in accordance with the terms of this Agreement. You agree not to block, in any manner, the transmission of data required for compliance with this Agreement. Any blocking of data required for compliance under this Agreement is a material breach of it.
    5. 9.1.4 Data Controller. You agree that, as between you and WHMCS, you are the data controller of the User Data and are solely responsible for compliance with all applicable laws, rules, and regulations pertaining to data controllers.
  10. 10. Miscellaneous.
    1. 10.1 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.
    2. 10.2 Independent Contractors. It is the intention of the parties that WHMCS, Vendors, 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 WHMCS and any Vendor, nor WHMCS and you.
    3. 10.3 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 sitting in Harris County, Texas. For purposes of this Agreement, the parties hereby irrevocably consent to exclusive personal jurisdiction and venue in the federal and state courts in Harris County, Texas.
    4. 10.4 Entire Agreement. This Agreement, together with all Schedules hereto, represents the entire agreement between the parties with respect to the subject matter hereof and thereof and will, except as expressly provided in this Agreement, supersede all prior agreements and communications of the parties, oral or written. In the event the provisions of this Agreement conflict with the EULA or any Subscriber Agreement, the provisions of this Agreement shall supersede and be controlling. Without limiting the above, any disputes relating to the interpretation of this Agreement shall be exclusively governed by paragraph 10.3.
    5. 10.5 Basis of Bargain. Section 6.2 (Limited Warranty), Section 7 (Limitations of Liability) and Section 8 (Indemnification) are fundamental elements of the basis of the agreement between WHMCS and you and shall inure to the benefit of WHMCS. WHMCS would not be able to provide the Product on an economic basis without such limitations.
    6. 10.6 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 affect 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.
    7. 10.7 Amendment or Modification. This Agreement is subject to change without prior notice from WHMCS. You shall be deemed to have accepted any changes or modifications by your continuing use of any Product or Products. 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 WHMCS.
    8. 10.8 Assignment. Notwithstanding a sublicense as permitted by Section 2, this Agreement may not otherwise 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 10.8. This Agreement may be assigned, transferred, delegated, sold or otherwise disposed of in its entirety: (a) by WHMCS in its sole discretion; (b) by you with the prior written consent of WHMCS; and (c) as set forth in Section 2. In addition, WHMCS may delegate its performance under this Agreement in whole or in part to one or more affiliates. 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. You may not 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 10.8, including, without limitation, by operation of law, is null and void.
    9. 10.9 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.
    10. 10.10 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.
    11. 10.11 No Third Party Beneficiaries. The parties do not intend that any term of this Agreement should be enforceable by any person who is not a party to this Agreement.
    12. 10.12 Notices. All notices or questions relating to this Agreement shall be directed to: WHMCS, LLC, Attention: General Counsel, 2550 N Loop W Suite 500, Houston TX 77092, with a copy to: legal@whmcs.com. Any notice required to be given under this Agreement shall be deemed given by WHMCS when sent to you by WHMCS through its online portal or by email. You may update your email address from time to time upon written notice to WHMCS through the WHMCS Marketplace. Any failure by you to provide WHMCS with updated contact information will not invalidate the effectiveness of any notice sent by WHMCS to the contact information previously supplied by you.
    13. 10.13 Export Controls. You agree to comply with all applicable international and national laws that apply to the Products, including the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. It is your sole and exclusive obligation to ensure that your end users may use the Products. You agree to cooperate with us fully, at your expense, should we require you to demonstrate compliance with this paragraph.
    14. 10.14 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 Product or this Agreement, must be filed within 1 year after such claim or cause of action arose or be forever barred.

    Schedule of Subscriber Agreements

    In addition to the foregoing, for any Products ordered from WHMCS, you agree to all Vendor agreements and policies associated with the purchase and/or use of such Products (collectively, “Subscriber Agreements”). WHMCS has no control over Vendors nor the content of any Subscriber Agreement.

    All Subscriber Agreements may be amended from time to time [so use a live link to the Subscriber Agreements when obtaining consent)].

    Without limiting the above, you specifically agree to be bound by the following:

    Exhibit 1: Data Processing Addendum

    1. 1. Definitions.
      1. 1.1 The following capitalized terms used in this DPA shall be defined as follows:
        1. (a) "Controller" has the meaning given in the GDPR.
        2. (b) "Your Personal Data" means the "personal data" (as defined in the GDPR) that WHMCS processes on behalf of you in connection with the provision of the Products.
        3. (c) "Data Protection Laws" means the EU General Data Protection Regulation 2016/679 of the European Parliament and of the Council ("GDPR"), any applicable national implementing legislation including, and in each case as amended, replaced or superseded from time to time, and all applicable legislation protecting the fundamental rights and freedoms of persons and their right to privacy with regard to the Processing of your Personal Data. To the extent that the Data Protection Laws must be interpreted according to national implementing legislation, they shall be interpreted according to the laws of the Republic of Ireland.
        4. (d) "Data Subject" has the meaning given in the GDPR.
        5. (e) "EEA" means the European Economic Area, being the Member States of the European Union together with Iceland, Norway, and Liechtenstein.
        6. (f) "Processing" has the meaning given in the GDPR, and "Process" will be interpreted accordingly.
        7. (g) "Processor" has the meaning given in the GDPR.
        8. (h) "Security Incident" means any accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, any of your Personal Data.
        9. (i) "Subprocessor" means any Processor engaged by WHMCS who agrees to receive from WHMCS your Personal Data.
        10. (j) "Supervisory Authority" has the meaning given in the GDPR.
    2. 2. Data Processing
      1. 2.1 Instructions for Data Processing. WHMCS will only Process your Personal Data in accordance with your written instructions. The Agreement (subject to any changes agreed between the parties) and this DPA shall be your complete and final instructions to WHMCS in relation to the Processing of your Personal Data.
      2. 2.2 Processing outside the scope of this DPA or the Agreement will require prior written agreement between you and WHMCS on additional instructions for Processing.
      3. 2.3 Required consents. Where required by applicable Data Protection Laws, you will ensure that you have obtained/will obtain all necessary consents for the Processing of your Personal Data by WHMCS in accordance with the Agreement.
    3. 3. Transfer of Personal Data
      1. 3.1 You agree that WHMCS may use Subprocessors to fulfil its contractual obligations under the Agreement. WHMCS shall notify you from time-to-time of the identity of any new Subprocessors it engages. If you (acting reasonably) object to a new Subprocessor on grounds related to the protection of your Personal Data only, you may request that WHMCS move your Personal Data to another Subprocessor and WHMCS shall, within a reasonable time following receipt of such request, use reasonable endeavors to ensure that the original Subprocessor does not Process any of your Personal Data. If it is not reasonably possible to use another Subprocessor, and you continue to object for a legitimate reason, either party may terminate the Agreement on thirty days written notice. If you do not object within thirty days of receipt of the notice, you are deemed to have accepted the new Subprocessor.
      2. 3.2 Except as set out in paragraph 3.1, WHMCS shall not permit, allow or otherwise facilitate Subprocessors to Process your Personal Data without your prior written consent and unless WHMCS:
        1. (a) enters into a written agreement with the Subprocessor which imposes the same obligations on the Subprocessor with regard to their Processing of your Personal Data, as are imposed on WHMCS under this DPA; and
        2. (b) at all times remains responsible for compliance with its obligations under the DPA and will be liable to you for the acts and omissions of any Subprocessor as if they were WHMCS’s acts and omissions.
      3. 3.3 Prohibition on International Transfers of Personal Data. You acknowledge that WHMCS or its Subprocessors may access your Personal Data outside the EEA or Switzerland, provided that WHMCS maintains its certifications to the EU-U.S. Privacy Shield and Swiss-US Privacy Shield frameworks respectively.
    4. 4. Data Security, Audits and Security Notifications
      1. 4.1 Security Obligations. WHMCS will implement and maintain reasonable technical and organizational measures necessary under the GDPR. You acknowledge and agree that these measures ensure a level of security that is appropriate to the risk.
      2. 4.2 Upon your reasonable request, WHMCS will make available all information reasonably necessary to demonstrate compliance with this DPA.
      3. 4.3 Security Incident Notification. If WHMCS becomes aware of a Security Incident, WHMCS will: (a) notify you of the Security Incident within 72 hours, (b) investigate the Security Incident and provide you (and any law enforcement or regulatory official) with reasonable assistance as required to investigate the Security Incident.
      4. 4.4 Employees and Personnel. WHMCS will treat your Personal Data as confidential, and shall ensure that any employees or other personnel have agreed in writing to protect the confidentiality and security of your Personal Data.
      5. 4.5 Audits. WHMCS will, upon your reasonable request, allow for and contribute to audits, including inspections, of its compliance with this DPA, conducted by you (or a third party on your behalf and mandated by you) provided: (i) such audits or inspections are not conducted more than once per year (unless requested by a Supervisory Authority); (ii) are conducted only during business hours; and (iii) are conducted in a manner that causes minimal disruption to WHMCS’s operations and business.
    5. 5. Access Requests and Data Subject Rights
      1. 5.1 Government Disclosure. WHMCS will notify you of any request for the disclosure of your Personal Data by a governmental or regulatory body or law enforcement authority (including any Supervisory Authority) unless otherwise prohibited by law or a legally binding order of such body or agency.
      2. 5.2 Data Subject Rights. Where applicable, and taking into account the nature of the Processing, WHMCS will use reasonable endeavors to assist you by implementing appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of your obligation to respond to requests for exercising Data Subject rights set out in the GDPR.
    6. 6. Data Protection Impact Assessment and Prior Consultation
      1. 6.1 To the extent required under applicable Data Protection Laws, WHMCS will provide you with reasonably requested information to enable you to carry out data protection impact assessments or prior consultations with any Supervisory Authority, to the extent that either is solely in relation to Processing of your Personal Data and taking into account the nature of the Processing and information available to WHMCS.
    7. 7. Termination
      1. 7.1 Deletion of data. Subject to 7.2 below, WHMCS will, at your election and within 90 days of the date of termination of the Agreement at WHMCS’s election:
        1. (a) return a copy of all of your Personal Data Processed by WHMCS by secure file transfer to you (and securely delete all other copies of your Personal Data Processed by WHMCS); or
        2. (b) securely delete your Personal Data Processed by WHMCS.
      2. 7.2 WHMCS and its Subprocessors may retain your Personal Data to the extent required by applicable laws and only to the extent and for such period as required by applicable laws and always provided that WHMCS ensures the confidentiality of all Personal Data and shall ensure that such Personal Data is only Processed as necessary for the purpose(s) specified in the applicable laws requiring its storage and for no other purpose.

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    Last Updated: 13th February 2023