WP Safely Terms of Service

These Terms of Service (“Terms of Service”) apply to the Rocket Lift WP SAFELY UPGRADES AGREEMENT.

1. RELATIONSHIP OF THE PARTIES
1.1 Independent Contractor. Rocket Lift is an independent contractor, not an employee of Client or any company affiliated with Client. Rocket Lift shall provide the Services under the general direction of Client, but Rocket Lift shall determine, in Rocket Lift’s sole discretion, the manner and means by which the Services are accomplished. This Agreement does not create a partnership or joint venture and neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. Rocket Lift and the work product (including any and all Deliverables) prepared by Rocket Lift will not be deemed a work for hire as that term is defined under Copyright Law. All rights, if any, granted to Client are contractual in nature and are wholly defined by the express written agreement of the parties and the various terms and conditions of this Agreement.

2. INTELLECTUAL PROPERTY RIGHTS.
2.1 Client Content. Client Content, including all pre-existing Client Trademarks, shall remain the sole property of Client or its respective suppliers, and Client or its suppliers shall be the sole owner of all rights in connection therewith. Client hereby grants to Rocket Lift a nonexclusive license to use, reproduce, modify, display, publish, and create derivative works based on the Client Content solely in connection with Rocket Lift’s performance of the Services.

2.2 Third Party Materials. All Third Party Materials in Client’s Web Site are the exclusive property of their respective owners. To the extent that Third Party Materials are integrated into the Client’s Web Site, the Client represents and warrants that it has all necessary licenses necessary to permit the parties’ use of the Third Party Materials. Notwithstanding the foregoing, Client acknowledges that Third Party Materials may include open source software, and that the license terms applicable to such open source software may restrict Client’s Use of the Web Site. Client agrees that the existence of any such restriction will not constitute a breach of this Agreement by Rocket Lift, and that Client will not seek recourse from Rocket Lift on the basis of any such restriction. Without limiting the generality of Section 4, in the event Client fails to properly secure or otherwise arrange for any necessary licenses (which shall include Client’s failure to inform Rocket Lift of the use of Third Party Materials as set forth in this Section), or fails to comply with the license terms applicable to any open source software incorporated into any Deliverable, Client hereby agrees to indemnify, defend and hold harmless Rocket Lift from and against any and all damages, liabilities, costs, losses, and expenses (including reasonable attorney fees) arising out of any claim, demand, or action by a third party arising out of such failure, whether such failure involves copyright, trademark, publicity, privacy, defamation, or other claims.

3. WARRANTIES AND REPRESENTATIONS
3.1 By Client. Client represents, warrants and covenants to Rocket Lift that (a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content, (b) the Client Content does not infringe the rights of any third party, and use of the Client Content as well as any Trademarks in connection with the Client’s Web Site does not and will not violate the rights of any third parties, (c) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and (d) Client shall comply with all laws and regulations as they relate to the Client’s Web Site.

3.2 By Rocket Lift. Rocket Lift hereby represents, warrants and covenants to Client that Rocket Lift will provide the Services identified in the Rocket Lift WP SAFELY UPGRADES AGREEMENT in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services.
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION, ROCKET LIFT MAKES NO WARRANTIES WHATSOEVER. ROCKET LIFT EXPLICITLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COURSE OF DEALING, AND COMPLIANCE WITH LAWS OR GOVERNMENT RULES OR REGULATIONS.

4. INDEMNIFICATION/LIABILITY
4.1 Indemnification. Client hereby agrees to indemnify, defend, and hold harmless Rocket Lift from and against any and all damages, liabilities, costs, losses or expenses (including reasonable attorney fees) arising out of any claim, demand, or action by a third party arising out of any breach of Client’s responsibilities, obligations, representations, or warranties under this Agreement. Under such circumstances, (a) Rocket Lift shall promptly notify Client in writing of any claim or suit; (b) With the exception of claims involving Rocket Lift’s intellectual property rights, which Rocket Lift may in its sole discretion opt to defend, Client will have sole control of the defense and all related settlement negotiations; and (c) Rocket Lift shall provide Client with commercially reasonable assistance, information, and authority necessary for Client to perform Client’s obligations under this Section. Client shall reimburse Rocket Lift for the reasonable out-of-pocket expenses incurred by Rocket Lift in providing such assistance.

4.2 LIMITATION OF LIABILITY. THE SERVICES, DELIVERABLES, AND OTHER WORK PRODUCT OF ROCKET LIFT ARE PROVIDED “AS IS.” IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF ROCKET LIFT, ITS DIRECTORS, OFFICERS, EMPLOYEES, THIRD PARTY DEVELOPERS, AGENTS, AND AFFILIATES (“ROCKET LIFT PARTIES”), TO CLIENT, AND CLIENT’S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL BE LIMITED TO THE NET PROFIT RECEIVED BY ROCKET LIFT PURSUANT TO THIS AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IN NO EVENT SHALL ROCKET LIFT BE LIABLE FOR ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE MATERIALS OR THE SERVICES PROVIDED BY ROCKET LIFT, EVEN IF ROCKET LIFT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

5. Notices. All notices and other communications under this Agreement must be in writing and will be deemed to have been given only if delivered personally, mailed by certified mail, delivered by an overnight delivery service (with confirmation), or delivered by electronic mail (with read receipt confirmation) to the parties at their respective address set forth in the signature block to this Agreement, or to such other addresses as either party may hereafter indicate pursuant to this Section. Any notice or other communication will be deemed to be given (a) on the date of personal delivery, (b) at the expiration of the Third day after the date of deposit in the United States mail, (c) on the date of confirmed delivery by overnight delivery service, or (d) with respect to electronic mail, on the read receipt confirmation date, and both parties agree to promptly provide read receipts when reasonably requested.

6. Amendments. This Agreement may be amended only by an instrument in writing executed by an authorized agent of each of the parties, which writing must refer to this Agreement. Notwithstanding the foregoing, Rocket Lift’s invoices may include, and Client shall pay, expenses and costs that Client authorizes by electronic mail in cases of extreme time sensitivity.

7. Electronic Signatures. Any Agreement between the parties may be acknowledged by a signed printed original or by any electronic means (“E-signature”) that acknowledges the intent to be bound by the terms of such Agreement bearing an E-signature. The electronic transmission of any document bearing an E-signature, and any retransmission of any signed electronic transmission, will be the same as delivery of an original. At the request of any party, the parties will confirm E-signatures and electronically transmitted signatures by signing an original document.

8. Waiver. Any provision or condition of this Agreement may be waived at any time, in writing, by the party entitled to the benefit of such provision or condition. Waiver of any breach of any provision will not be a waiver of any succeeding breach of the provision or a waiver of the provision itself or any other provision.

9. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the state of Oregon, without regard to conflict of laws principles.

10. Arbitration. With the exception of disputes and claims arising out of or relating to lack of payment, any dispute or claim that arises out of or that relates to this Agreement, or to the interpretation or breach of this Agreement, or to the existence, validity, or scope of this Agreement or the arbitration agreement, shall be resolved by arbitration in Portland, Oregon in accordance with the then-effective arbitration rules of Arbitration Service of Portland, Inc., and judgment upon the award rendered pursuant to such arbitration may be entered in any court having jurisdiction thereof. The parties acknowledge that mediation helps parties settle their dispute and any party may propose mediation whenever appropriate through Arbitration Service of Portland, Inc. or with any mediator selected by the parties.

11. Severability. If any provision of this Agreement is unenforceable, that provision will be changed and interpreted to accomplish the objectives of the provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect in order to best accomplish the original intent of the parties.

13. Force Majeure. Rocket Lift shall not be deemed in breach of this Agreement if Rocket Lift is unable to perform all or any portion of Rocket Lift’s obligations by reason of fire, natural disaster, act of terrorism, labor dispute, any local, state, federal, national or international law governmental order or regulation, or any other event beyond Rocket Lift’s control.

14. Entire Agreement. The WP Safely Upgrades Agreement together with these Terms of Service constitutes the entire agreement and understanding of the parties with respect to the subject matter of this Agreement and supersedes all prior understandings and agreements, whether written or oral, among the parties with respect to such subject matter.